Valerie Bandstra, Anne Bandstra, Ryan Bandstra and Jason Bandstra v. Covenant Reformed Church

IN THE SUPREME COURT OF IOWA

No. 16–1078

Filed June 1, 2018

VALERIE BANDSTRA, ANNE BANDSTRA, RYAN BANDSTRA,

and JASON BANDSTRA,

Appellants,

vs.

COVENANT REFORMED CHURCH,

Appellee.

Appeal from the Iowa District Court for Marion County, John D.

Lloyd, Judge.

Appellants appeal several summary judgment and discovery

rulings in their civil suit against a religious entity. AFFIRMED IN PART,

REVERSED IN PART, AND REMANDED.

Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,

Des Moines, for appellants.

Michael W. Thrall of Nyemaster Goode, P.C., Des Moines, and

Frances M. Haas of Nyemaster Goode, P.C., Cedar Rapids, for appellee.

Eugene Volokh of Scott & Cyan Banister First Amendment Clinic

at UCLA School of Law, Los Angeles, California, and Jason D. Walke of

Walke Law, LLC, Waukee, for amicus curiae International Society for

Krishna Consciousness, Inc.

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CADY, Chief Justice.

In this appeal, we address a number of claims within a lawsuit by

two female parishioners and their spouses against a church based on

claims of negligence and defamation involving sexual abuse and

exploitation perpetrated on the women by the church pastor and the

subsequent response by the governing body of the church. The district

court granted summary judgment for the church on all claims except

negligent supervision, but found the negligent-supervision claims

brought by the female parishioners were barred by the statute of

limitations. On appeal, we affirm the district court in part and reverse in

part. We hold the Religion Clauses of our State and Federal

Constitutions bar two of the negligence claims brought against the

church, and the governing statute of limitations bars one parishioner’s

claim of negligent supervision. We further hold the claims of defamation

were properly dismissed by the district court. On remand, we direct the

church to produce certain documents for in camera inspection by the

district court.

I. Factual Background and Proceedings.

A. Covenant Reformed Church. Covenant Reformed Church is a

religiously conservative Dutch Reformed Christian Church located in

Pella, Iowa. The Church is affiliated with the United Reformed Churches

in North America and seeks to “teach and preach the Christian Gospel

according to the Bible and the Doctrinal Standards, namely the Belgic

Confession, the Canons of Dorttrecht and the Heidelberg Catechism, the

Westminster Confession and Catechism.” The Church is organized as a

nonprofit corporation and is governed locally by a Consistory, which is

comprised of a minister of the Word and a Board of Elders.

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The Board of Elders oversees the operations of the church and

serves as both administrative and spiritual leaders. The board is

comprised of sixteen “male confessing members” of the Church who are

elected to serve by the congregation in staggered terms of three years.

The Church does not require elders to complete any formal theological

training or be ordained, and a male congregant need only “meet the

biblical requirements for office and indicate their agreement with the

Form of Subscription” to be deemed qualified to serve.

Members of the Church are expected to submit to the elders with

respect to matters of doctrine and spirituality, although members

understand that they ultimately submit to God. Additionally, when a

baptized member of the United Reformed Churches of North America

makes a profession of faith, they promise to submit to the government of

the Church and to its admonition or discipline should they become

delinquent in either doctrine or in their personal life.

The Church Order of the United Reformed Churches in

North America describes the duties of an elder as follows:

The duties belonging to the office of elder consist of

continuing in prayer and ruling the church of Christ

according to the principles taught in Scripture, in order that

purity of doctrine and holiness of life may be practiced. They

shall see to it that their fellow-elders, the minister(s) and the

deacons faithfully discharge their offices. They are to

maintain the purity of the Word and Sacraments, assist in

catechizing the youth, promote God-centered schooling, visit

the members of the congregation according to their needs,

engage in family visiting, exercise discipline in the

congregation, actively promote the work of evangelism and

missions, and insure that everything is done decently and in

good order.

The minister of the Word is an ordained pastor who “continue[s] in

prayer in the ministry of the Word, administer[s] the sacraments,

catechiz[es] the youth, and assist[s] the elders in the shepherding and

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discipline of the congregation.” In order to serve as a minister of the

Word, a candidate must demonstrate his “thoroughly reformed

theological education,” including

his knowledge of the Holy Scriptures, both in the original

languages and in English translations, of the Three Forms of

Unity, of Christian doctrine, Christian ethics and church

history; of the Church Order, and of his knowledge and

aptitude with regard to the particular duties and

responsibilities of the minister of the Word, especially the

preparation and preaching of sermons.

Further, a candidate’s personal life is examined. Once a minister of the

Word is publically ordained before the congregation, he is “bound to the

service of the churches for life and may change the nature of his labor

only for weighty reasons, upon approval by his supervising council with

the concurring advice of classis.” However, the Church may remove a

minister of the Word if the “pastoral relationship has been irreconcilably

broken, and a minister of the Word or the council of the congregation he

is serving desires to dissolve their pastoral relationship.”

The Board of Elders is responsible for supervising the Church’s

pastor. Supervising a pastor is not a matter of doctrine and is a secular

administrative function of the board. The board supervises the pastor by

(1) “discuss[ing] the preaching of the Word and mak[ing] sure it coincides

with the Holy Bible,” (2) having “meetings twice a month [to] interact with

[the pastor], [and] discuss things that need to be discussed,” and

(3) “go[ing] on what [the board] call[s] house visitation calls and [asking]

the parishioners how the pastor is pastoring them and whether there

[are] concerns or recommendations that [the board] can do to improve

things.”

B. Plaintiffs and Pastor Edouard’s Sexual Exploitation. In

2003, the Church called Patrick Edouard to be its pastor and minister of

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the Word. Edouard was respected and considered a “dynamic” and “very

talented speaker.”

Valerie Bandstra and her husband, Jason, were members of the

Church at the time Edouard arrived. In 2005, Valerie and Jason were

struggling with infertility, which was taking an emotional toll on Valerie.

Upon learning of her struggles, Edouard began making unsolicited phone

calls to Valerie’s cell phone, inquiring into her personal life and fertility.

In 2006, Valerie and Jason were in the process of seeking an

international adoption, and Valerie decided to seek counseling from

Edouard to help her cope. Edouard invited Valerie to comes see him “at

his study,” which was in the basement of his home.

When Valerie arrived for her first counseling session, Edouard

showed her to his study in the basement. Edouard locked the door and

began inquiring into Valerie’s personal struggles. Edouard inquired into

whether Jason was “meeting [her] needs,” then proceeded to grope and

kiss her. The two then engaged in sexual intercourse, and Valerie has

consistently maintained the sex was against her will. Following the

encounter, Edouard continued to call Valerie and insist her husband was

not meeting her needs. He informed Valerie her emotional struggles

stemmed from “sexual frustration” and unhappiness in marriage.

Edouard urged Valerie that he was “protect[ing]” her by helping her

release her sexual energy. Additionally, Edouard urged Valerie that he

believed God brought them together so she could use her good fortune to

help him. Edouard asked for, and Valerie ultimately loaned him,

$70,000.

In October 2009, Valerie’s sister, Patty, confided in Valerie that

Edouard had tried to kiss her during a counseling session. Once Valerie

learned what Edouard had done to her sister, she realized he

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was using his pastoral position and basically the trust that

people put in him as a pastor to counsel and to basically

recruit women to be counseling candidates so he could get

them into a position of trust and vulnerability for the very

purpose of abusing them.

Soon after the conversation, Valerie called Edouard and told him he was

using his position as pastor under the guise of counseling to have sexual

relationships with women. Valerie then broke off contact with Edouard,

although she did not inform the Church or the police of his conduct out

of fear of retribution or not being believed.

Anne Bandstra and her husband, Ryan (Jason’s brother), were also

members of the Church when Edouard was called to be pastor in 2003.

In 2008, Anne was going through a difficult time. She felt overwhelmed

by a recent death in the family, marital problems, and her special needs

child. Anne had been prescribed antidepressant and anxiety

medications, which she was taking.

In April 2008, Edouard contacted Anne and suggested she counsel

with him. Edouard invited Anne to his basement study and locked the

door. He inquired into her personal life, her marital struggles, and

whether she had engaged in premarital sex. Anne left the meeting to

pick up her son, although she felt uneasy about Edouard’s line of

questioning. Edouard then began calling Anne frequently, asking to see

her again. In May, during a counseling session, Edouard grabbed her

and kissed her. Soon, the “counseling” evolved into regular meetings for

Edouard to provide “healing” through sexual activity. Beyond sexual

intercourse, Edouard would aggressively call Anne, sometimes ten to

fifteen times a day.

In May 2010, Edouard informed Anne of his previous interactions

with Valerie and another woman, Sandy. After the conversation, Anne

“started putting all the pieces together very quickly.” She began to see

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“what had happened to Sandy and the abuse there” and could see “what

happened to Valerie, to Patty, to Wanda, to multiple women that [were] in

[her] church.” Anne continued to meet with Edouard until December 10.

On that day, Ryan arrived home and saw Edouard’s vehicle parked

outside the home. Although Ryan did not witness Anne and Edouard

engaging in any sexual activity, he grew suspicious. That evening, Anne

informed Ryan of Edouard’s “counseling.” Ryan then spoke to Jason,

and the two brothers put the stories together and discovered Edouard’s

exploitation.

On December 13, Jason and Ryan met with three elders and

informed them of Edouard’s misconduct with their wives. That same

evening, Edouard came to a Church meeting and one elder, Mr. Hettinga,

questioned him about his conduct with Anne. Edouard admitted to

inappropriate conduct with Anne and voluntarily offered his resignation.

The entire Board of Elders met later that evening and voted to accept

Edouard’s resignation.

C. Church Response to Clergy Abuse Allegations. On

December 15, the elders sent a letter to the entire congregation

explaining they had accepted Edouard’s resignation. The letter stated

Edouard’s “sins are of such a nature that they warrant our acceptance of

[his] resignation,” but did not disclose the nature of Edouard’s

misconduct.

On December 27, Valerie and Anne were called to appear before

the elders. At the meeting, the women were asked to confess their sins

with Edouard and ask for forgiveness, which they did. Valerie maintains

she confessed to “idolatry,” and Anne maintains she did not confess to

any specific sin, although the elders understood the women to have

confessed to “adultery.” The elders granted Valerie and Anne

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forgiveness. On December 29, the Consistory informed the congregation

that it had voted unanimously to institute proceedings to depose

Edouard from the office of minister of the Word.

On January 14, 2011, the Board of Elders sent another letter to

the entire congregation. It stated, in relevant part,

During the past four weeks the Consistory has learned of a

prolonged period of sexual immorality and/or inappropriate

contact between Patrick Edouard and multiple women

congregant members. These members will remain unnamed

by the Consistory and we admonish the congregation that

they remain unnamed by you also. In love for the body of

Christ, we must demonstrate our forgiving love for these

members by being prudent with our speech and persistent in

prayer for us all. We are thankful for those members who

came before the Elders and eagerly desire to remain a part of

us. We whole-heartedly accept them.

Although the letter did not identify Valerie or Anne by name, the

congregation had become aware of which women came forward with

allegations against Edouard.

A few days later, another member of the Church, Julie Hooyer,

wrote to the elders and urged the elders to refrain from blaming

Edouard’s victims or referring to the misconduct as “affairs.” Hooyer, a

social worker, explained that blaming the women for Edouard’s clergy

abuse would significantly damage the women, as well as the

congregation as a whole. Hooyer, along with Anne, Ryan, and other

affected church members, soon thereafter attended an elder meeting to

discuss their perspectives. They urged the elders to “form a task force to

inform and counsel the Congregation, and [asked] that [the elders] write

a letter to the Congregation using the terms clergy abuse and victims

rather than adultery.” The elders responded by asking Hooyer to submit

her suggestions for the letter. After the members left the meeting, the

elders discussed their ideas and noted “the perspective and suggestions

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had very little Biblical or theological content or viewpoint.” The elders

ultimately decided it was best to “request guidance from a Christian

psychologist or an attorney.”

Following the meeting, Hooyer indeed sent some suggested

language for a congregation letter to the elders. The elders declined to

send her letter, “due in part to recommendations from law enforcement

officials” and because they “felt the concepts she suggested were not

necessarily Biblical and that the women involved using these concepts

felt they were totally victims.” In a letter circulated between the elders,

the elders expressed their view that

a false dichotomy is established when it asserts that all

blame is [Edouard’s]. The victims are certainly sinned

against, but they are also sinning. All the parties involved

failed to walk in the light (I John 1) and the women, though

not bearing the same degree of responsibility as does

[Edouard], were certainly responsible for their behavior and

need to be called to repentance for consenting to his

advances and for violating their marital covenant. They

sinned sexually, even though they can rightly in one sense

be denominated as victims of Patrick’s machinations.

Many elders did not view Anne and Valerie’s experiences as rape or

sexual assault, and some even questioned whether Edouard engaged in

any misconduct at all. One elder, Mr. Van Mersbergen, purportedly

stated in a meeting that what happened to the women “was not clergy

sexual abuse.” Another elder, Mr. Hartman, stated during a meeting that

“[g]rooming is a word made up by professionals. In reality, it is

temptation. These women fell into temptation and they sinned.” During

a home visitation, another elder, Mr. Van Donselaar, stated, “Our only

wish is that the women would admit what they did was wrong and ask

for forgiveness like Patrick did.” He further explained, “If Edouard goes

to jail, there are four women who should go to jail as well.” On another

occasion, Van Donselaar spoke with Ryan on the phone and informed

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him there was “sin on both sides” and that Edouard’s conduct “was not

clergy sexual abuse.” On yet another occasion, Von Donselaar stated to

other members of the congregation that “Edouard is more repentant than

any of these women will be.”

In the summer of 2011, the elders discussed inviting Dr. Diane

Langberg, an expert in clergy sexual abuse, to consult with the Church.

During the elder meeting, there was a motion to include in the invitation

“the phrase that the women committed . . . and confessed to adultery

with Patrick Edouard and were forgiven at the time of their confessions.”

The elders ultimately requested that Dr. Langberg come to the Church

and “fully support the actions they had taken at that time.”

Dr. Langberg declined, citing the elders’ reluctance to view the women as

victims. In September, the elders again voted to invite Dr. Langberg to

meet with the elders once Edouard’s criminal trial was finished.

Ultimately, Dr. Langberg never visited the Church.

In July of 2012, Valerie and Jason left the Church. Anne and

Ryan followed suit two months later.

D. Edouard’s Criminal Conviction. In the meantime, Edouard

was charged with three counts of sexual abuse in the third degree, in

violation of Iowa Code section 709.4(1) (2011), four counts of sexual

exploitation by a counselor or therapist, in violation of Iowa Code section

709.15(2)(c), and one count of engaging in a pattern or practice of sexual

exploitation by a counselor or therapist, in violation of Iowa Code section

709.15(2)(a). A jury trial began on August 13, 2012. Both Valerie and

Anne testified. Edouard also testified in his defense, maintaining all

sexual activity was consensual, and he never provided mental health

services.

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The jury convicted Edouard of the five sexual exploitation charges

and acquitted him of the three sexual abuse charges. He was sentenced

to five years in prison. We affirmed his case on appeal, concluding in

relevant part that sufficient evidence existed to support a conviction of

sexual exploitation. See State v. Edouard, 854 N.W.2d 421, 439 (Iowa

2014), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880

N.W.2d 699, 708 & n.3 (Iowa 2016). In rejecting a constitutional

challenge to the sexual exploitation statute, we explained “the

relationships between Edouard and each of the four women did not

involve full and mutual consent. In each case, Edouard used—

misused—his position of authority as a counselor to exploit the

vulnerabilities of his victim.” Id. at 444. We concluded “[t]he

relationships were of a kind where ‘consent might not easily be refused.’ ”

Id. (quoting Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484

(2003)).

E. Civil Proceedings. On December 7, 2012, Valerie, Anne,

Ryan, and Jason brought a civil suit against Edouard, the Church,

United Reformed Churches in North America, and several named elders.

The plaintiffs subsequently dismissed the claims against United

Reformed Churches in North America and Edouard.

Following a number of amended petitions and voluntary motions to

dismiss, the plaintiffs ultimately allege the Church and elders

(1) negligently declined to invite mental health counselors and clergy

sexual abuse experts to work with the congregation; (2) negligently

blamed the women for their sexual exploitation, causing them severe

emotional harm; (3) negligently investigated Edouard’s misconduct

following plaintiffs’ complaints; (4) negligently supervised and retained

Edouard; and (5) made a number of defamatory statements against Anne

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and Valerie. Throughout the duration of the suit, defense counsel and

plaintiffs’ counsel engaged in a number of discovery disputes, resulting

in the district court reviewing a significant number of documents

in camera and issuing twelve separate discovery rulings.

The district court issued three summary judgment orders. The

first concluded the elders individually were immune from suit under Iowa

Code section 504.901, which grants immunity to “a director, officer, or

member of a [nonprofit] corporation . . . for any action taken or failure to

take any action in the discharge of the person’s duties,” except in four

specific instances. Iowa Code § 504.901 (2013). The court concluded

the elders could not be held liable for any actions taken pursuant to their

duties in governing a nonprofit corporation. The court then found the

doctrine of issue preclusion could not be applied to the question of

whether Valerie or Anne consented to their encounters with Edouard, as

the jury did not specifically find, as an element of the crime of sexual

exploitation, that the women did not consent to the encounters.

In the second order, the district court granted summary judgment

in favor of the Church on the plaintiffs’ defamation claims. The court

found that all but two identified statements were qualifiedly privileged

and could not give rise to a defamation action. The remaining

statements, the court determined, were protected opinion statements

incapable of being proven true or false. Further, the court found that no

statements were made with actual malice, and thus, the plaintiffs could

not overcome the qualified privilege.

In the final order, the district court granted summary judgment in

favor of the Church on all negligence claims, except Ryan and Jason’s

negligent-supervision claims. The court found the First Amendment

barred plaintiffs’ first two negligence claims. Next, the court found that,

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First Amendment concerns notwithstanding, summary judgment was

appropriate for the negligent-investigation claim, as the elders accepted

Edouard’s resignation within hours of hearing of the allegations. Finally,

the court determined that both Anne and Valerie’s negligent-supervision

claims were barred by the statute of limitations, as both women were

aware of Edouard’s misconduct more than two years before filing suit.

Plaintiffs moved for the district court to reconsider its rulings with

respect to their negligence claims. The plaintiffs urged that the district

court did not consider the continuing-violations doctrine, which would

place Anne and Valerie within the statute of limitations. Although the

Church contested whether the issue was preserved, the court

nevertheless reached the issue. The court concluded the record did not

demonstrate that the plaintiffs were incapacitated in bringing an action

against the Church. Further, the court found that Iowa had not adopted

the continuing-violations doctrine, and thus, the court was without

jurisdiction to apply it here.

Plaintiffs appealed, and we retained the case.

II. Standard of Review.

We review a district court’s summary judgment ruling “for

correction of errors at law.” Walderbach v. Archdiocese of Dubuque, Inc.,

730 N.W.2d 198, 199 (Iowa 2007). Summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue as to any material fact.” Id. (quoting Iowa R. Civ. P. 1.981(3)).

When reviewing a district court’s ruling, we view the record in the light

most favorable to the nonmoving party. Id. at 199–200.

“Whether the elements of issue preclusion are satisfied is a

question of law.” Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 445

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(Iowa 2016) (quoting Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d

17, 22 (Iowa 2012)). We review applications of evidentiary privileges for

correction of errors at law. State v. Richmond, 590 N.W.2d 33, 34 (Iowa

1999). Our review of discovery matters is for an abuse of discretion.

Willard v. State, 893 N.W.2d 52, 58 (Iowa 2017). We will not disturb the

court’s conclusions unless the “ruling ‘rests upon clearly untenable or

unreasonable grounds.’ ” Id. (quoting Jones v. Univ. of Iowa, 836 N.W.2d

127, 139 (Iowa 2013)).

III. Analysis.

A number of issues have been properly raised on appeal for our

review: (1) Whether the Religion Clauses of the United States and Iowa

Constitutions bar plaintiffs’ negligence claims, (2) whether summary

judgment was erroneously granted on plaintiffs’ negligent-investigation

claim, (3) whether the two-year statute of limitations bars Valerie and

Anne’s negligent-supervision claims, (4) whether the district court erred

in dismissing plaintiffs’ defamation claims, (5) whether Edouard’s

criminal conviction permits plaintiffs in this suit to offensively preclude

any argument that the women consented to the encounters, (6) whether

the district court erred in applying the clergy privilege during discovery,

and (7) whether the district court abused its discretion with respect to

the production of numerous identified discovery documents. We

consider each issue in turn.

A. Negligence Claims.

1. Religion Clauses. Both the United States and Iowa

Constitutions instruct that governing bodies “shall make no law

respecting an establishment of religion, or prohibiting the free exercise

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thereof.” U.S. Const. Amend. I; Iowa Const. art. I, § 3. 1 The Free

Exercise Clause preserves “the right to believe and profess whatever

religious doctrine one desires.” Emp’t Div. Dep’t of Human Res. v. Smith,

494 U.S. 872, 877, 110 S. Ct. 1595, 1599 (1990), superseded by statute

on other grounds, Religious Freedom Restoration Act of 1993, Pub. L.

No. 103-141, 107 Stat. 1488. The government therefore

may not compel affirmation of religious belief, punish the

expression of religious doctrines it believes to be false,

impose special disabilities on the basis of religious views or

religious status, or lend its power to one or the other side in

controversies over religious authority or dogma[.]

Id. (citations omitted).

Relatedly, the Establishment Clause “forbids an official purpose to

disapprove of a particular religion or of religion in general.” Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct.

2217, 2226 (1993). The Establishment Clause guards against

“sponsorship, financial support, and active involvement of the sovereign

in religious activity.” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S. Ct.

2105, 2111 (1971) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 668, 90

S. Ct. 1409, 1411 (1970)).

The Supreme Court has “struggled to find a neutral course

between the two Religion Clauses, both of which are cast in absolute

terms, and either of which, if expanded to a logical extreme, would tend

to clash with the other.” Walz, 397 U.S. at 668–69, 90 S. Ct. at 1411.

“The general principle deducible from the First Amendment and all that

has been said by the Court is this: that we will not tolerate either

governmentally established religion or governmental interference with

1Plaintiffshave not asked us to adopt a separate analysis from federal

constitutional precedent.

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religion.” Id. at 669, 90 S. Ct. at 1411–12. “Short of those expressly

proscribed governmental acts there is room for play in the joints

productive of a benevolent neutrality which will permit religious exercise

to exist without sponsorship and without interference.” Id. at 669, 90

S. Ct. at 1412.

Over time, there has been a doctrinal shift in the Supreme Court’s

religious jurisprudence from separatism to neutrality. Separatism

adheres to a “wall of separation between church and State” that instructs

“[n]either a state nor the Federal Government can, openly or secretly,

participate in the affairs of any religious organizations or groups and vice

versa.” Everson v. Bd. of Educ., 330 U.S. 1, 16, 67 S. Ct. 504, 512 (1947)

(quoting Reynolds v. United States, 98 U.S. 145, 164 (1878) (first quote)).

Neutrality instructs that governments “must be neutral in matters of

religious theory, doctrine, and practice.” Epperson v. Arkansas, 393 U.S.

97, 103–04, 89 S. Ct. 266, 270 (1968). Under this view, “[t]he First

Amendment mandates governmental neutrality between religion and

religion, and between religion and nonreligion.” Id. at 104, 89 S. Ct. at

270.

In Jones v. Wolf, the Supreme Court found that Georgia’s “neutral

principles of law” approach to deciding church-related property disputes

did not run afoul of the Religion Clauses. 443 U.S. 595, 604, 99 S. Ct.

3020, 3026 (1979). The Court explained that Georgia’s approach “relies

exclusively on objective, well-established concepts of trust and property

law familiar to lawyers and judges. It thereby promises to free civil

courts completely from entanglement in questions of religious doctrine,

polity, and practice.” Id. at 603, 99 S. Ct. at 3025. Although the

approach still required courts “to examine certain religious documents,

such as a church constitution,” the Court found “[o]n balance . . . the

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promise of nonentanglement and neutrality inherent in the neutral-

principles approach more than compensates for what will be occasional

problems in application.” Id. at 604, 99 S. Ct. at 3026. Indeed, “[t]he

neutral-principles approach cannot be said to ‘inhibit’ the free exercise of

religion, any more than do other neutral provisions of state law governing

the manner in which churches own property, hire employees, or

purchase goods.” Id. at 606, 99 S. Ct. at 3027.

2. Tort claims and religious entities. The First Amendment plainly

prohibits the state, through its courts, from resolving internal church

disputes that would require interpreting or deciding questions of

religious doctrine. See Serbian E. Orthodox Diocese v. Milivojevich, 426

U.S. 696, 724–25, 96 S. Ct. 2372, 2387–88 (1976) (forbidding judicial

inquiry into whether the church judicatory body properly followed its

own rules of procedure in removing a bishop from office); Presbyterian

Church v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S.

440, 449, 89 S. Ct. 601, 606 (1969) (instructing if an intrachurch

property dispute requires interpreting and weighing church doctrine, a

court cannot intervene; if, however, neutral principles of law can be

applied without determining underlying question of religious doctrine

and practice, a court may intervene); Kedroff v. St. Nicholas Cathedral,

344 U.S. 94, 119–21, 73 S. Ct. 143, 156–57 (1952) (holding state statute

that declared one faction of the Russian Orthodox Church to be the

owner of certain church property an unconstitutional intrusion into

religious decision-making); Bouldin v. Alexander, 82 U.S. (15 Wall.) 131,

139–40 (1872) (finding civil courts have no power to question ordinary

acts of church discipline, requirements for membership, or whether

excommunication is proper in specific cases).

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Yet, when churches dispute with third parties, the question of the

state’s proper role becomes more complex. Third-party disputes with

religious entities often involve matters of compelling state interest, such

as discrimination and sexual abuse. If religious entities are de facto

exempt from most tort liability, then courts may run afoul of the

Establishment Clause by placing religious organizations on a higher

plane than nonreligious entities. Further, the Supreme Court has

explained that courts “do not inhibit free exercise of religion merely by

opening their doors to disputes involving church property. And there are

neutral principles of law . . . which can be applied without ‘establishing’

churches to which property is awarded.” Presbyterian Church, 393 U.S.

at 449, 89 S. Ct. at 606. Courts that navigate the terrain of the Religion

Clauses must therefore work with a scalpel, rather than a machete.

3. Split perspectives. The Supreme Court has offered no direct

guidance on the proper analytical framework for determining whether the

First Amendment prohibits a tort claim against a religious entity.

Although the First Amendment prevents courts from deciding questions

of religious doctrine, state and federal courts are divided as to whether

certain negligence claims actually require courts to interpret or consider

religious principles.

Some state and federal courts have held the First Amendment

categorically prohibits any judicial inquiry into a religious entity’s

operations; as such, an inquiry would necessarily entangle the court with

the church’s religious self-governance. 2

2See, e.g., Roppolo v. Moore, 644 So. 2d 206, 209 (La. Ct. App. 1994) (“[A]ny

inquiry into the policies and practices of the Church Defendants in hiring or

supervising their clergy raises the same kind of First Amendment problems of

entanglement discussed above, which might involve[] the Court in making sensitive

judgments about the propriety of the church Defendants’ supervision in light of their

religious beliefs . . . .” (quoting Schmidt v. Bishop, 779 F. Supp. 321, 332 (S.D.N.Y.

19

In Gibson v. Brewer, the Missouri Supreme Court concluded the

First Amendment barred the plaintiff’s claims alleging negligent hiring,

retention, and supervision of a priest, but did not bar the claim of

intentional failure to supervise. 952 S.W.2d 239, 246–48 (Mo. 1997)

(en banc). With respect to “[q]uestions of hiring, ordaining, and retaining

clergy,” the court found that resolving such claims “necessarily involve[s]

interpretation of religious doctrine, policy, and administration.” Id. at

246–47. Further, the court found such an inquiry “would result in an

endorsement of religion, by approving one model for church hiring,

ordination, and retention of clergy.” Id. at 247. With respect to negligent

supervision, the court again concluded the claim would cause “excessive

entanglement, inhibit religion, and result in the endorsement of one

_______________________

1991))); Swanson v. Roman Catholic Bishop of Portland, 692 A.2d 441, 445 (Me. 1997)

(finding negligent-supervision claims are barred by the First Amendment because

“import[ing] agency principles wholesale into church governance and to impose liability

for any deviation from the secular standard is to impair the free exercise of religion and

to control denominational governance [because p]astoral supervision is an ecclesiastical

prerogative”); Teadt v. Lutheran Church Mo. Synod, 603 N.W.2d 816, 823 (Mich. Ct. App.

1999) (concluding a breach of fiduciary duty claim is essentially a clergy malpractice

claim, as courts would have to inquire into “the legitimacy of [the] plaintiff’s beliefs, the

tenets of the faith insofar as they reflect upon a priest’s ability to act as God’s emissary

and the nature of the healing powers of the church” (alteration in original) (quoting

Langford v. Roman Catholic Diocese of Brooklyn, 677 N.Y.S.2d 436, 440 (N.Y.S. Ct.

1998))); Mulinix v. Mulinix, No. C2–97–297, 1997 WL 585775, at *6 (Minn. Ct. App.

Sept. 22, 1997) (“Carol’s claims for negligent retention and negligent supervision are

fundamentally connected to issues of church governance. Adjudication of these claims

would necessitate inquiry into the church’s motives for not discharging Michael, as well

as how the church investigates and resolves complaints concerning clergy

misconduct.”); Gibson v. Brewer, 952 S.W.2d 239, 247 (Mo. 1997) (en banc) (concluding

“[a]djudicating the reasonableness of a church’s supervision of a cleric—what the

church ‘should know’—requires inquiry into religious doctrine . . . [that] would create

an excessive entanglement, inhibit religion, and result in the endorsement of one model

of supervision”); Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d 907, 911 (Neb.

1993) (dismissing a breach of fiduciary duty claim because it is, in essence, a claim of

clergy malpractice); Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 789, 791 (Wisc.

1995) (finding an inquiry into a church’s supervision of its clergy would be “prohibited

by the First Amendment under most if not all circumstances,” as it would require the

court to determine the reasonableness of the church’s decisions in light of their

religious beliefs).

20

model of supervision.” Id. However, the court found the tort of

intentional failure to supervise clergy did not run afoul of the First

Amendment. Id. at 248. Because the claim requires an intent to commit

harm, or the disregard of a known risk, the First Amendment does not

require “[r]eligious conduct intended or certain to cause harm” to be

tolerated. Id.

Conversely, many states have adopted the opposing view and

determined the First Amendment does not require categorical immunity

for religious entities. 3

3See, e.g., Moses v. Diocese of Colo., 863 P.2d 310, 320–21 (Colo. 1993) (en banc)

(“Application of a secular standard to secular conduct that is tortious is not prohibited

by the Constitution. The Supreme Court has not granted churches broad immunity

against being sued in civil courts. Civil actions against clergy members and their

superiors that involve claims of a breach of fiduciary duty, negligent hiring and

supervision, and vicarious liability are actionable if they are supported by competent

evidence in the record.” (Citations omitted.)); Malicki v. Doe, 814 So. 2d 347, 361 (Fla.

2002) (“[I]t appears that the Free Exercise Clause is not implicated in this case because

the conduct sought to be regulated; that is, the Church Defendants’ alleged negligence

in hiring and supervision is not rooted in religious belief. Moreover, even assuming an

‘incidental effect of burdening a particular religious practice,’ the parishioners’ cause of

action for negligent hiring and supervision is not barred because it is based on neutral

application of principles of tort law.” (quoting Lukumi Babalu Aye, 508 U.S. at 531, 113

S. Ct. at 2226)); Bivin v. Wright, 656 N.E.2d 1121, 1124 (Ill. App. Ct. 1995) (permitting a

number of negligence claims, including supervision and retention because “[i]nquiring

into whether the church was negligent in its failure to protect plaintiffs from the sexual

misconduct of its minister may not call into question the church’s religious beliefs or

practices or subject them to analysis or scrutiny”); F.G. v. MacDonell, 696 A.2d 697, 702

(N.J. 1997) (“The First Amendment does not insulate a member of the clergy from

actions for breach of fiduciary duty arising out of sexual misconduct that occurs during

a time when the clergy member is providing counseling to a parishioner.”); Kenneth R. v.

Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 796 (App. Div. 1997) (“Religious

entities have some duty to prevent injuries inflicted by persons in their employ whom

they have reason to believe will engage in injurious conduct.”); Smith v. Privette, 495

S.E.2d 395, 398 (N.C. Ct. App. 1998) (“The Plaintiffs’ claim, construed in the light most

favorable to them, instead presents the issue of whether the Church Defendants knew

or had reason to know of Privette’s propensity to engage in sexual misconduct, conduct

that the Church Defendants do not claim is part of the tenets or practices of the

Methodist Church. Thus, there is no necessity for the court to interpret or weigh

church doctrine in its adjudication of the Plaintiffs’ claim for negligent retention and

supervision.” (Citation omitted.)); Byrd v. Faber, 565 N.E.2d 584, 590 (Ohio 1991)

(“While even the most liberal construction of the First Amendment will not protect a

religious organization’s decision to hire someone who it knows is likely to commit

criminal or tortious acts, the mere incantation of an abstract legal standard should not

21

In Malicki v. Doe, the Florida Supreme Court found the First

Amendment did not bar the plaintiff’s negligent hiring and supervision

claims against a church. 814 So. 2d 347, 364 (Fla. 2002). The court

first concluded the church did not allege its hiring or supervision of the

abusive priest was done in accordance with “sincerely held religious

beliefs or practices.” Id. at 361. Because the purportedly tortious

conduct was not grounded in any religious belief or practice, the Free

Exercise Clause was not implicated. Id. Further, the court found that

even if tort liability would burden a particular religious practice, the

Supreme Court has held that the “incidental effect of burdening a

particular religious practice” is permissible if based on “neutral

application of principles of tort law.” Id. (quoting Lukumi Babalu Aye,

508 U.S. at 531, 113 S. Ct. at 2226 (first quote)). With respect to

negligent hiring and supervision, “[t]he core predicate for imposing

liability is one of foreseeability.” Id. at 362. Attaching liability to

foreseeability of harm has a secular purpose, and the primary effect of

tort liability “neither advances nor inhibits religion.” Id. at 364. Thus,

liability would not run afoul of the Establishment Clause, as courts

would abstain from resolving religious doctrinal questions and would

treat religious and nonreligious entities equally. Id. at 364–65.

_______________________

subject a religious organization’s employment policies to state scrutiny. . . . [A] plaintiff

bringing a negligent hiring claim must allege some fact indicating that the religious

institution knew or should have known of the employee’s criminal or tortious

propensities.”); Erickson v. Christenson, 781 P.2d 383, 386 (Or. Ct. App. 1989) (rejecting

a First Amendment challenge to a breach of fiduciary duty and intentional infliction of

emotional distress claims, as the claims rested on a confidential, personal relationship,

rather than a religious relationship); C.J.C. v. Corp. of Catholic Bishop of Yakima, 985

P.2d 262, 277 (Wash. 1999) (en banc) (“The First Amendment does not provide

churches with absolute immunity to engage in tortious conduct. So long as liability is

predicated on secular conduct and does not involve the interpretation of church

doctrine or religious beliefs, it does not offend constitutional principles.”).

22

4. Merits.

a. Negligent response to sexual abuse allegations. The plaintiffs

allege the Church (1) willfully disregarded the advice of professional

counselors and denounced established and accepted mental health

treatment concepts after it learned of the abuse; and (2) ignored any duty

of care it had to the plaintiffs and instead blamed them for their actions,

causing them emotional harm.

To succeed on a claim for negligence, the plaintiffs must show “the

existence of a duty to conform to a standard of conduct to protect others,

a failure to conform to that standard, proximate cause, and damages.”

Estate of Gottschalk v. Pomeroy Dev., Inc., 893 N.W.2d 579, 586 (Iowa

2017) (quoting Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa

2009)). Here, resolving whether the elders breached their duty to the

plaintiffs would result in impermissible entanglement with religion.

Following Edouard’s resignation, the elders sought to help the

congregation move forward and heal. The means by which they chose to

counsel and advise the congregation is outside the purview of the

government. Plaintiffs argue “a reasonable church would seek assistance

for parishioners and not label victims ‘adulteresses.’ ” Yet, that is

precisely the type of determination that the Religion Clauses prohibit.

The elders determined that certain speakers and mental health resources

were outside of their faith. A court cannot dictate what teachings and

services a church offers its parishioners. Nor can we disapprove of the

elders deciding, pursuant to their duty as religious authorities, that the

women would be best healed by simply confessing their “sins.” Because

plaintiffs’ first two negligence claims go to the very heart of religious

decision-making, they are barred by the First Amendment.

23

b. Negligent investigation. Plaintiffs next claim the Church

breached its duty of care by not conducting an investigation into

Edouard’s conduct after plaintiffs disclosed his abuse. We agree with the

district court that First Amendment considerations notwithstanding,

summary judgment is properly granted in favor of the Church. The

elders were informed of Edouard’s criminal conduct on December 13,

2010. A few hours later, they accepted his resignation. While the

Church indeed owed a duty of care to the plaintiffs, the Church acted

immediately and affirmed Edouard’s removal from his office, preventing

Edouard from further using his office to abuse Anne and Valerie.

Accordingly, plaintiffs have not adduced sufficient evidence to generate a

genuine issue of material fact as to whether the Church’s failure to

investigate Edouard’s misconduct was the proximate cause of their

injuries.

c. Negligent supervision.

i. First Amendment viability. To succeed on a negligent-

supervision claim, plaintiffs must demonstrate

(1) the employer knew, or in the exercise of ordinary care

should have known, of its employee’s unfitness at the time

the employee engaged in wrongful or tortious conduct;

(2) through the negligent . . . supervision of the employee,

the employee’s incompetence, unfitness, or dangerous

characteristics proximately caused injuries to the plaintiff;

and

(3) there is some employment or agency relationship between

the employee and the defendant employer.

Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 680 (Iowa 2004)

(quoting Stricker v. Cessford Constr. Co., 179 F. Supp. 2d. 987, 1019

(N.D. Iowa 2001)). We first recognized the claims of negligent hiring and

supervision in Godar v. Edwards, in which we explained employers have

“a duty to exercise reasonable care in hiring individuals, who, because of

24

their employment, may pose a threat of injury to members of the

public. . . . [S]uch a claim likewise includes an action for negligent

retention and negligent supervision.” 588 N.W.2d 701, 709 (Iowa 1999).

The crux of a negligent-supervision claim is an employer’s failure

“to exercise ordinary care in supervising the employment relationship so

as to prevent the foreseeable misconduct of an employee from causing

harm to others.” 27 Am. Jur. 2d Employment Relationships § 375, at 885

(2014) (emphasis added). “Conduct that results in harm to a third

person is not negligent or reckless unless there is a foreseeable likelihood

that harm will result from the conduct.” Restatement (Third) of Agency

§ 7.05 cmt. d, at 181 (Am. Law Inst. 2006). In Godar, a student was

sexually abused by a school district’s curriculum director and sued the

school district for negligent hiring, retention, and supervision. 588

N.W.2d at 703–05. We determined summary judgment was properly

granted, as “[t]here [was] no evidence in the record to suggest that the

school district should have been suspicious of [the director’s] contact

with students.” Id. at 709–10.

The Church argues that negligent-supervision claims per se are

barred by the First Amendment, as a court would be called upon to

“[a]djudicat[e] the reasonableness of a church’s supervision of a cleric,”

which is an adjudication that necessarily requires inquiry into religious

doctrine. Gibson, 952 S.W.2d at 247. We disagree.

“Whether [a church] reasonably should have foreseen the risk of

harm to third parties . . . is a neutral principle of tort law.” Malicki, 814

So. 2d at 364. In Smith, the Supreme Court instructed that the “right of

free exercise does not relieve an individual of the obligation to comply

with a ‘valid and neutral law of general applicability on the ground that

the law proscribes (or prescribes) conduct that his religion prescribes (or

25

proscribes).’ ” 494 U.S. at 879, 110 S. Ct. at 1600 (quoting United States

v. Lee, 455 U.S. 252, 263 n.3, 102 S. Ct. 1051, 1058 n.3 (1982)

(Stevens, J., concurring in the judgment)). The United States Court of

Appeals for the Fifth Circuit has further explained, “The First

Amendment does not categorically insulate religious relationships from

judicial scrutiny, for to do so would necessarily extend constitutional

protection to the secular components of these relationships.” Sanders v.

Casa View Baptist Church, 134 F.3d 331, 335–36 (5th Cir. 1998). The

court reasoned that categorical immunity “impermissibly place[s] a

religious leader in a preferred position in our society.” Id. at 336.

While the decision whether to invite certain speakers, or use

certain rhetoric, is protected religious decision-making, reasonable

supervision of an employee is a principle of tort law that applies neutrally

to all employers. Further, the Church confirmed during oral argument

that the Church’s supervision, or lack thereof, was not grounded in any

religious doctrine or teachings. Although the elders and Edouard were

both religious figures, working pursuant to their deeply held faiths, this

status does not “excuse [them] from compliance with an otherwise valid

law prohibiting conduct that the State is free to regulate.” Smith, 494

U.S. at 879, 110 S. Ct. at 1600. Indeed, any burden that may result

from imposing a secular duty to inquire into the whereabouts and

potential misconduct of a pastor is no more than an “incidental effect of

a generally applicable” tort principle, which does not offend the First

Amendment. Id. at 878, 110 S. Ct. at 1600.

Moreover, the resolution of questions of foreseeability and

reasonableness will not implicate any Establishment Clause concerns.

To discern whether it was foreseeable that Edouard was engaging in

criminal conduct, a court must determine what the elders knew or

26

should have known. In turn, a court must decide whether the

supervision of Edouard, in light of the foreseeable risks, was reasonable.

A court need not interpret any doctrine, nor otherwise impermissibly

entangle itself with religion, in order to conclude the elders owed a duty

to its parishioners to supervise Edouard. Indeed, failing to hold religious

employers accountable for their failure to supervise their employees

would grant immunity to religious figures, which the state may not do.

Accordingly, we find plaintiffs’ negligent-supervision claims are not

barred by the Religion Clauses.

ii. Statute of limitations. The district court concluded that, First

Amendment limitations aside, both Valerie’s and Anne’s negligent-

supervision claims were barred by the statute of limitations. See Iowa

Code § 614.1(2) (providing the limitations period for personal injury

claims is two years). Plaintiffs allege that the limitations period only

began running once Anne and Valerie knew or should have known they

were victims of Edouard’s scheme and the Church failed to prevent his

misconduct. According to the plaintiffs, the earliest date the women

could have been put on notice was December 10, 2010, when the family

learned of the systemic abuse. In the alternative, plaintiffs ask that we

apply the continuing-violations doctrine and determine that plaintiffs

could not have brought their claims while they remained under the

control of the Church.

Statutes of limitations are commonly justified on judicial efficiency

and fairness grounds and are best understood as “an accommodation of

competing interests.” Borchard v. Anderson, 542 N.W.2d 247, 251 (Iowa

1996).

The plaintiff wishes to have a reasonable time to bring the

suit in order that he [or she] may identify the various acts of

negligence, the parties responsible, and the extent of his [or

27

her] damages. The defendant, on the other hand, seeks to

avoid having to defend against stale claims because

witnesses’ memories may fade or other evidence may be lost.

The limitation period is also designed to bring repose and an

end to the assertion of claims. It must be admitted that in

this area any bright line rule has the potential for providing

a hardship in an individual case.

Id. (alterations in original) (quoting LeBleau v. Dimig, 446 N.W.2d 800,

803 (Iowa 1989)).

The “potential for providing a hardship” is perhaps the most

prevalent in civil claims deriving from traumatic instances of sexual

abuse or exploitation. Id. In Callahan v. State, we discussed the

relationship between childhood sexual abuse and delayed discovery of

the elements of a legal claim. 464 N.W.2d 268, 271 (Iowa 1990).

[T]he term “Post-Traumatic Stress Disorder” (PTSD) is used

to describe the psychological impact of traumatic events on a

person. The disorders resulting from these events may be

either a combination of physical and mental disorders, or

solely a residual mental incapacity continuing after a

physical injury has healed. PTSD can exist even when a

trauma victim has not suffered demonstrable physical

injury. A sexually abused child who suffers from this

disorder may exhibit symptoms of unnatural secrecy,

feelings of helplessness or entrapment, delayed or conflicting

disclosure, retraction, and various phobias. A practical

consequence is that the child may repress or delay disclosing

the sexual abuse until after the pertinent personal injury

statute of limitations has run.

Id. (quoting James Wilson Harshaw III, Comment, Not Enough Time?: The

Constitutionality of Short Statutes of Limitations for Civil Child Sexual

Abuse Litigation, 50 Ohio St. L.J. 753, 756–57 (1989)).

We also noted in Callahan that the legislature had responded to

widespread concerns about the viability of childhood sexual abuse claims

and adopted a specific statutory discovery rule to preserve their claims.

Id. at 272. Although the legislature declined to adopt a corresponding

statute for adult victims of sexual abuse, adult victims are nevertheless

28

aided by application of the discovery rule if they can adduce sufficient

evidence that they discovered the illegality within two years of filing suit,

even if the abuse took place long before.

Under the discovery rule, a victim’s claim will begin to accrue once

she is “aware of the existence of a problem,” even if she does not yet have

a full understanding of the abuse’s ultimate effects. Borchard, 542

N.W.2d at 251. Further, the limitations period begins not with actual

knowledge, but rather once the plaintiff is placed on inquiry notice.

Vossoughi v. Polaschek, 859 N.W.2d 643, 652 n.4 (Iowa 2015). “A party

is placed on inquiry notice when a person gains sufficient knowledge of

facts that would put that person on notice of the existence of a problem

or potential problem.” Id. (quoting Buechel v. Five Star Quality Care, Inc.,

745 N.W.2d 732, 736 (Iowa 2008)).

The nature of Edouard’s sexual exploitation prevented the women

from understanding at the outset that his conduct was illegal. Gary

Schoener, a psychologist who offered an affidavit explaining the impact of

clergy sexual abuse, explained that victims often experience confusion

about what has taken place, difficulty explaining the problem or giving it

a name, shame and guilt following even minor incidents, and fear of

retribution. Thus, plaintiffs argue Valerie and Anne were not on notice

from the outset of the abuse but, rather, when they realized they were

one of many victims and that the Church had done nothing to prevent or

remedy it.

Even under plaintiffs’ proposed understanding, Valerie’s claim

remains outside the limitations window. Edouard initially exploited

Valerie in 2006. Edouard continued to pursue and contact her until

October 2009. In October 2009, Valerie spoke with her sister Patty and

29

learned that Edouard had tried to kiss her during a counseling session.

Valerie explained that the conversation caused her to realize

he was using his pastoral position and basically the trust

that people put in him as a pastor to counsel and to

basically recruit women to be counseling candidates so he

could get them into a position of trust and vulnerability for

the very purpose of abusing them.

Following that realization, she called Edouard and accused him of clergy

sexual abuse “in so many words.” Thus, Valerie knew of Edouard’s

scheme of sexual exploitation in October 2009 and was then placed on

inquiry notice of the elders’ unreasonable supervision of Edouard.

Because Valerie had notice of the elders’ allegedly tortious conduct more

than two years before filing suit, her claim is barred by the statute of

limitations.

Anne’s period of exploitation began in April 2008. The district

court erroneously determined Anne knew the conduct was tortiously

“wrong” from the outset. As explained above, the nature of clergy

misconduct prevents victims from understanding that the behavior is

exploitive and unlawful. Yet, Anne stated in her deposition that in May

2010, Edouard called her and informed her that he had had prior sexual

relationships with other female members of the congregation. After the

phone call, Anne “started putting all the pieces together very quickly.” In

her deposition, Anne stated that at that time, she realized,

When you get out of the control of that man, you can see

what’s going on. . . . You could put all those pieces together,

what had happened to Sandy and the abuse there. You

could see what happened to Valerie, to Patty, to Wanda, to

multiple women that are in our church. . . . It’s so hard to

explain, but when he has that control over all these women’s

minds—he had that over Sandy, he had that over Valerie.

He even had that over Patty and Wanda. He loves that

power.

Q. Okay. Were there other pieces—other things that

you looked to that—that kind of fell into place that you said

30

“Now—Now I see what was going on. Now I see what he was

doing”? A. Yes.

Thus, Anne knew of Edouard’s pattern of using his position to abuse

women in May 2010. This placed her on inquiry notice of the elders’

failure to supervise Edouard properly. Anne’s limitations period,

therefore, began to run in May 2010 for encounters that occurred before

her realization and began running immediately for all encounters after

May 2010.

However, Edouard continued to criminally exploit Anne, under the

elders’ supervision, until December 10, 2010—the date of the last

encounter between Edouard and Anne. Plaintiffs filed suit on

December 7, 2012. Because Anne was the victim of Edouard’s criminal

exploitation, and the Church potentially engaged in negligent supervision

during the limitations period, Anne’s claim is not entirely time-barred.

Anne therefore has an actionable claim against the Church for its failure

to supervise Edouard during the limitations period. Cf. Farmland Foods

v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 741 (Iowa 2003)

(“[T]he existence of past acts and the employee’s prior knowledge of their

occurrence . . . does not bar employees from filing charges about related

discrete acts so long as the acts are independently discriminatory and

charges addressing those acts are themselves timely filed.” (second

alteration in original) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113, 112 S. Ct. 2061, 2072 (2002))).

Plaintiffs further allege that even if Valerie and Anne had inquiry

notice outside of the limitations period, they were unable to act upon

their knowledge, and thus the limitations period should be tolled until

they were free from the Church’s control. Plaintiffs exclusively rely on

Callahan to support their theory. In Callahan, a child was abused from

31

the age of four to age seven, but did not disclose his abuse to his mother

until several years later. 464 N.W.2d at 269. When his mother brought

suit individually and as her son’s next friend, the district court dismissed

the claims because the son’s abuse took place outside the limitations

period. Id. We reversed, explaining at issue was not the son’s knowledge

of the abuse, but rather his mother’s. Id. at 273. Because there were

sufficient facts in the record for a jury to conclude that, despite her best

efforts, the mother could not have discovered her child’s abuse until he

disclosed it under intensive counseling, we held summary judgment was

improper. Id. Callahan did not address the victim’s ability to act on

knowledge of sexual abuse, but rather underscores that the

psychological ramifications of sexual abuse may affect when an injury

can reasonably be discovered. Here, both Valerie and Anne discovered

the nature of Edouard’s scheme, and thus their injuries, more than two

years prior to filing suit. Thus, reliance on Callahan is inapposite.

As an alternative to the discovery rule, plaintiffs ask that we allow

Valerie and Anne’s claims to proceed, for their entire period of

exploitation, under the continuing-violations doctrine. Specifically,

plaintiffs ask that we apply the “cumulative wrongs” theory to the

Church’s misconduct. Although the parties dispute whether we have in

fact adopted the continuing-violations theory, we need not resolve that

issue, as we do not find the theory applicable in this case.

Plaintiffs cite Page v. United States to support their cumulative

wrongs theory. See 729 F.2d 818, 821–22 (D.C. Cir. 1984). In Page, the

court explained, “[W]hen a tort involves continuing injury, the cause of

action accrues, and the limitation period begins to run, at the time the

tortious conduct ceases.” Id. at 821 (quoting Donaldson v. O’Connor, 493

F.2d 507, 529 (5th Cir. 1974), overruled on other grounds, 422 U.S. 563,

32

95 S. Ct. 2486 (1975)). The doctrine applies when “no single incident in

a continuous chain of tortious activity can ‘fairly or realistically be

identified as the cause of significant harm,’ [and] it seems proper to

regard the cumulative effect of the conduct as actionable.” Id. at 821–22

(quoting Fowkes v. Pennsylvania R.R., 264 F.2d 397, 399 (3rd. Cir.

1959)). Here, however, the Church’s negligent supervision of Edouard’s

criminal conduct did not become actionable because of its continuous

nature. Each sexual encounter was an act of sexual exploitation, which

was potentially facilitated by the elders’ negligent supervision. Plaintiffs’

claims are not derived from a cumulative wrong, but from reoccurring

wrongs.

In summary, we find Valerie’s negligent-supervision claim is barred

by the statute of limitations and Anne may proceed on a negligent-

supervision claim derived from any exploitation that occurred within the

two-year limitations period.

B. Defamation Claims.

1. Defamation principles. Our defamation law “embodies the

public policy that individuals should be free to enjoy their reputation

unimpaired by false and defamatory attacks. An action for defamation

. . . is based upon a violation of this right.” Schlegel v. Ottumwa Courier,

585 N.W.2d 217, 221 (Iowa 1998) (quoting 50 Am. Jur. 2d Libel and

Slander § 2, at 338–39 (1995)). We recognize two types of defamation:

per quad and per se. Johnson v. Nickerson, 542 N.W.2d 506, 510 (Iowa

1996).

Defamation per quod “refer[s] to facts or circumstances beyond the

words actually used to establish the defamation.” Id. To succeed in

proving defamation per quod, a party must prove six elements:

(1) publication, (2) a defamatory statement, (3) falsity, (4) maliciousness,

33

(5) the statement was of or concerning the party, and (6) a resulting

injury. Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa 2013).

Defamation per se, alternatively, exists when a statement has a

“natural tendency to provoke the plaintiff to wrath or expose him to

public hatred, contempt, or ridicule, or to deprive him of the benefit of

public confidence or social intercourse.” Johnson, 542 N.W.2d at 510

(quoting Prewitt v. Wilson, 128 Iowa 198, 202, 103 N.W. 365, 367 (1905)).

If a statement is defamatory per se, the elements of falsity, malice, and

injury are legally presumed and the statement is actionable without proof

of the same. Schlegel, 585 N.W.2d at 222.

“An attack on the integrity and moral character of a party is

libelous per se.” Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108,

116 (Iowa 1984). We have found defamation per se in statements

accusing an individual of being a liar, Wilson v. IBP, Inc., 558 N.W.2d

132, 139 (Iowa 1996), accusing an individual of an indictable crime of

moral turpitude or that carries a jail sentence, Rees v. O’Malley, 461

N.W.2d 833, 835 (Iowa 1990), and accusing an individual of falsifying

information, Vinson, 360 N.W.2d at 116. We have also characterized an

accusation of adultery as defamation per se. Arnold v. Lutz, 141 Iowa

596, 597–98, 120 N.W. 121, 121 (1909).

To prove publication, a party must demonstrate the challenged

communication was made “to one or more third persons.” Huegerich v.

IBP, Inc., 547 N.W.2d 216, 221 (Iowa 1996). The third person must not

only hear the statement, but also understand it to be defamatory. Id.

Whether a listener understands a statement to be defamatory requires

viewing the statements “in the context of the surrounding circumstances

and within the entire communication.” Id. As well, a speaker may be

34

liable for “damages resulting from the repetition of the statement if the

repetition was reasonably foreseeable.” Id. at 222.

With respect to falsity, “statements regarding matters of public

concern that are not sufficiently factual to be capable of being proven

true or false and statements that cannot reasonably be interpreted as

stating actual facts are absolutely protected under the Constitution.”

Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 771 (Iowa 2006).

Although there is no strict dichotomy between “opinion” and “fact,” we

must consider “whether the alleged defamatory statement can reasonably

be interpreted as stating actual facts and whether those facts are capable

of being proven true or false.” Id. Under this framework, “statements of

opinion can be actionable if they imply a provable false fact, or rely upon

stated facts that are provably false.” Id. (quoting Moldea v. N.Y. Times

Co., 22 F.3d 310, 313 (D.C. Cir. 1994)). Importantly, “[t]he statement

that the plaintiff must prove false is not the literal wording of the

statement but what a reasonable reader or listener would have

understood the author to have said.” Id.

We utilize a four-part test to determine whether a statement is

factual or a protected opinion. The first factor is “whether the alleged

defamatory statement ‘has a precise core of meaning for which a

consensus of understanding exists or, conversely, whether the statement

is indefinite and ambiguous.’ ” Id. at 770 (quoting Ollman v. Evans, 750

F.2d 970, 979 (D.C. Cir. 1984)). The second factor is “the degree to

which the [alleged defamatory] statements are . . . objectively capable of

proof or disproof[.]” Id. (quoting Ollman, 750 F.2d at 981) (alterations in

original). The third factor is “the context in which the alleged defamatory

statement occurs.” Id. The final factor we consider is “the broader social

35

context into which [the alleged defamatory] statement fits.” Id. (alteration

in original) (quoting Ollman, 750 F.2d at 983).

Otherwise, actionable statements may be nevertheless rendered

nonactionable when spoken or written pursuant to a qualified or

absolute privilege. A communication is qualifiedly privileged if

(1) the statement was made in good faith; (2) the defendant

had an interest to uphold; (3) the scope of the statement was

limited to the identified interest; and (4) the statement was

published on a proper occasion, in a proper manner, and to

proper parties only.

Barreca v. Nickolas, 683 N.W.2d 111, 118 (Iowa 2004). We have

previously decided that “communications between members of a religious

organization concerning the conduct of other members or officers in their

capacity as such are qualifiedly privileged.” Kliebenstein v. Iowa

Conference of United Methodist Church, 663 N.W.2d 404, 407 (Iowa 2003)

(quoting 50 Am. Jur. 2d Libel and Slander § 340, at 663 (1995)).

Qualified privilege may be lost, however, if the speaker abuses the

privilege by speaking with actual malice or excessively publishing the

statement “beyond the group interest.” Id. (quoting Brewer v. Second

Baptist Church of L.A., 197 P.2d 713, 717 (Cal. 1948) (en banc)). A

statement is made with actual malice if the speaker “acted with knowing

or reckless disregard of the truth of the statement.” Barreca, 683 N.W.2d

at 121. In the clergy context, a statement loses its privilege if made to

individuals outside the congregation. Kliebenstein, 663 N.W.2d at 407.

In Kliebenstein, for example, we determined a church’s statement that

described the plaintiff as the “spirit of Satan” was not qualifiedly

privileged, as it was made to members of the general public and the term

had an offensive, secular meaning. Id. at 407–08.

36

2. Merits. We have identified eleven statements that plaintiffs

contend are actionable, defamatory communications. 4 We will address

each statement in turn.

First, one day in early 2011, Ryan was experiencing significant

distress from the circumstances and threatened to hurt himself. He

reached out to Jason, who called several individuals to come and stay

with Ryan. That evening, Elder Hettinga told the plaintiffs, in front of the

other third parties present, that “you are not victims.” Plaintiffs allege

this statement is defamatory. We are unable to discern from the record

whether the third parties present were exclusively Church members or if

others were there as well. Accordingly, we cannot conclude the

statements are qualifiedly privileged. However, we find the statement is a

protected opinion and nonactionable. At the time of this incident,

Edouard’s conduct had just been revealed. He had not been charged,

tried, or convicted. Moreover, the statement was made in the context of

the dispute between the parties as to whether the women should be

referred to as “victims” by the elders when communicating with the

congregation. While many may find Hettinga’s statement offensive,

whether the women are victims or sinners in need of forgiveness is not

objectively capable of proof or disproof. Yates, 721 N.W.2d at 770.

Second, on the same evening and under the same circumstances

as the first statement, Elder Hettinga additionally stated, “Unless . . . he

was holding a knife to her throat, it wasn’t rape.” Hettinga purportedly

made this statement in response to Ryan’s claim that his sister-in-law,

Valerie, had been raped. Hettinga disagreed. Again, Edouard had not

4The Church disputes whether many of these statements actually were made.

For summary judgment purposes, we will presume these communications were made in

the manner alleged.

37

yet been convicted or acquitted, and the men were likely not speaking in

terms of the legal definition of rape. While Hettinga’s statement similarly

may offend a great many people, others may believe that without a threat

of force, rape has not occurred. Indeed, some states still require a

showing of force as an element of rape. See, e.g., Mass. Gen. Laws Ann.

ch. 265, § 22 (West, Westlaw current through ch. 63 of 2018 2d Ann.

Sess.) (defining rape as sexual intercourse compelled “by force and

against [the] will” of the other (emphasis added)). Accordingly, a

“consensus of understanding” does not exist as to whether rape exists

without a threat of force. Yates, 721 N.W.2d at 770. Moreover, given

dialogue between the Church and the plaintiffs as to whether the women

were “victims” or “sinners,” the context of Hettinga’s statement supports

a finding that he was expressing his subjective belief about the plaintiffs’

status as victims, rather than communicating a verifiable fact.

Third, during a home visitation with members of the Church, Elder

Van Donselaar stated, “[O]ur only wish is that the women would admit

what they did was wrong and ask for forgiveness like [Edouard] did.”

Again, while some may find Van Donselaar’s statement offensive, he was

speaking as an elder to members of the Church about whether other

members should ask for forgiveness for their alleged sins. His statement

is qualifiedly privileged, as it is a “communication[] between members of

a religious organization concerning the conduct of other members or

officers in their capacity as such.” Kliebenstein, 663 N.W.2d at 407

(quoting 50 Am. Jur. 2d Libel and Slander § 340, at 663). Plaintiffs argue

that the women have always described the conduct as nonconsensual,

and thus Van Donselaar spoke with actual malice. However, at the time

of the communication, Edouard had not yet been convicted, and

38

Van Donselaar therefore did not speak with a “knowing or reckless

disregard of the truth.” Barreca, 683 N.W.2d at 121.

Fourth, on the same evening as the above statement, Elder

Van Donselaar further stated, “If Edouard goes to jail, there are four

women who should go to jail as well.” This statement is a nonactionable

opinion. Whether the women are morally deserving of criminal

punishment is not objectively capable of proof or disproof and is

therefore protected by the First Amendment.

Fifth, during a Board of Elders meeting, Elder Van Mersbergen

stated Edouard’s conduct “was not clergy sexual abuse.” This statement

is qualifiedly privileged, as it was made by and about members of a

religious organization in their capacity as such. Moreover, this

statement was made prior to Edouard’s conviction, and thus,

Van Mersbergen did not speak with actual malice.

Sixth, Elder Van Donselaar stated in a phone call with Ryan that

Edouard’s conduct “was not clergy sexual abuse.” Akin to the prior

statement, this communication is qualifiedly privileged and was spoken

without actual malice.

Seventh, on the same phone call with Ryan, Elder Van Donselaar

stated, “Edouard is more repentant than any of the women will ever be.”

At first glance, it appears the statement is nonactionable because it is

not false. Anne and Valerie have always maintained they have nothing to

“repent” as they were victims in Edouard’s sexual exploitation scheme.

Yet, given the context of the statements, the true message here is not

that the women are factually unrepentant, but rather that they should be

repentant because they too sinned. However, the latter notion is

similarly nonactionable for the same reasons as the first communication.

39

Whether, in the eyes of an elder, the women are victims or sinners in

need of forgiveness is not objectively provable.

Eighth, during a Board of Elders meeting, Elder Hartman stated,

“Grooming is a word made up by professionals. In reality, it is

temptation. These women fell into temptation and they sinned.” Similar

to the fifth statement, Hartman was speaking to and about members of

the church in their capacity as such. Accordingly, the statement is

privileged, and plaintiffs have not adduced evidence to demonstrate

Hartman was speaking with actual malice.

Ninth, in a letter to the congregation dated January 14, 2011, the

elders informed the parishioners that there was “sexual immorality

and/or inappropriate contact” between Edouard and “multiple women

congregant members.” The letter urged the congregation to demonstrate

“forgiving love” to these female members. The statements contained in

the letter are qualifiedly privileged, and there is no evidence in the record

that the elders were speaking with actual malice. Rather, the record

demonstrates the elders sincerely believed that, pursuant to their faith,

the women were in need of forgiveness, and Edouard’s criminal conduct

was “sexual immorality.”

Tenth, on September 19, 2012, the elders sent a letter to the

plaintiffs expressing the elders’ forgiveness for the plaintiffs’ sin of

adultery. While accusing a party of adultery is indeed defamation per se,

this statement lacks the necessary element of publication, as it was sent

exclusively to the plaintiffs.

Eleventh, on December 10 and 11, 2012, the elders prepared and

read statements to the congregation. The elders stated,

God calls [it] sin when someone who is married willingly has

intimate relations with a person who is not their spouse and

we have learned that other members rejected the

40

manipulations of a man who never should have lead them

astray.

We find this statement is qualifiedly privileged. Although it does not

directly name Anne and Valerie, nor Edouard’s other victims, by name, a

reasonable listener would understand the elders to be speaking about

the women involved in Edouard’s criminal scheme. The elders were

therefore speaking to members of the church about the conduct of other

members in their capacity as such. At this time, Edouard had been

convicted of sexual exploitation, and plaintiffs therefore argue that the

elders spoke with actual malice by inferring that Edouard’s victims had

“willing” relations with him. However, Edouard was acquitted of sexual

abuse, and the crime of sexual exploitation does not contain a consent

element. We find that plaintiffs have not proven that the elders spoke

with a “knowing or reckless disregard of the truth,” as a reasonable

person could understand Edouard’s acquittal to mean the jury believed

the encounters were consensual. Barreca, 683 N.W.2d at 121. Thus, the

statement remains qualifiedly privileged.

As a final matter, the plaintiffs contend that the Church

necessarily abused any qualified privilege by excessively publishing their

statements in a manner that permitted the news media to obtain and

publish information about Edouard’s criminal misconduct. However,

plaintiffs have not adduced any evidence to demonstrate the elders were

negligent in their communications or otherwise responsible for the story

ultimately ending up in the press. Accordingly, summary judgment was

properly granted on all of plaintiffs’ defamation claims.

C. Issue Preclusion. Plaintiffs wish to use the doctrine of

offensive issue preclusion, based on Edouard’s criminal convictions, to

prevent the Church from stating or otherwise implying at trial that the

41

plaintiffs consented to their encounters with Edouard. The district court

declined to apply the doctrine, as the crime of sexual exploitation by a

counselor does not require the jury to find, as an element, that the

plaintiffs did not consent.

Generally, issue preclusion, or collateral estoppel, “prevents parties

to a prior action in which judgment has been entered from relitigating in

a subsequent action issues raised and resolved in the previous action.”

Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981). A party

seeking to preclude an issue from being litigated must satisfy four

prerequisites:

(1) the issue concluded must be identical; (2) the issue must

have been raised and litigated in the prior action; (3) the

issue must have been material and relevant to the

disposition of the prior action; and (4) the determination

made of the issue in the prior action must have been

necessary and essential to the resulting judgment.

Id.

Offensive issue preclusion contemplates a party that is “a stranger

to the judgment . . . rely[ing] upon a former judgment as conclusively

establishing in his favor an issue which he must prove as an essential

element of his cause of action or claim.” Id. “Although offensive use of

issue preclusion is allowed in Iowa, it is more restrictively and cautiously

applied than defensive issue preclusion.” Buckingham v. Fed. Land Bank

Ass’n, 398 N.W.2d 873, 876 (Iowa 1987) (citation omitted). Offensively

invoking the doctrine of issue preclusion requires proving two additional

elements:

(1) whether the opposing party in the earlier action was

afforded a full and fair opportunity to litigate the issues . . .,

and (2) whether any other circumstances are present that

would justify granting the party resisting issue preclusion

occasion to relitigate the issues.

42

Winger, 881 N.W.2d at 451 (alteration in original) (quoting Emp’rs Mut.

Cas. Co., 815 N.W.2d at 22).

Edouard was convicted of sexual exploitation by a counselor or

therapist in violation of Iowa Code section 709.15(2)(c). The jury

instructions required the jury to find the following four elements:

(1) On or about April 2008, through 2010, the defendant

engaged in sexual conduct with Anne Bandstra.

(2) The defendant did so with the specific intent to arouse or

satisfy the desires of either the defendant or Anne Bandstra.

(3) The defendant was then a counselor or therapist.

(4) Anne Bandstra was then receiving mental health services

from the defendant, or had received mental health services

from the defendant within one year prior to the conduct.

The jury therefore did not determine whether Anne’s encounter with

Edouard was consensual. “The fundamental rationale of collateral

estoppel or issue preclusion commands that the doctrine only be applied

to matters that have been actually decided.” City of Johnston v.

Christenson, 718 N.W.2d 290, 301 (Iowa 2006). Because the victim’s

nonconsent is not an element of sexual exploitation by a counselor or

therapist, the issue was not “necessary and essential to the resulting

judgment.” Hunter, 300 N.W.2d at 123. Accordingly, the district court

did not err in determining that issue preclusion is inappropriate in this

instance.

D. Clergy Privilege. The plaintiffs further dispute the court’s

application of the clergy privilege throughout discovery. The plaintiffs

challenge the applicability of the privilege to many specific documents,

including the minutes of Board of Elder meetings.

The clergy privilege, as codified by the legislature, instructs

a member of the clergy shall not be allowed, in giving

testimony, to disclose any confidential communication

properly entrusted to the person in the person’s professional

43

capacity, and necessary and proper to enable the person to

discharge the functions of the person’s office according to

the usual course of practice or discipline.

Iowa Code § 622.10(1). Accordingly, for a party to avail itself of the

privilege, it must demonstrate that a communication is “(1) confidential;

(2) entrusted to a person in his or her professional capacity; and

(3) necessary and proper for the discharge of the function of the person’s

office.” Richmond, 590 N.W.2d at 35.

The statute embodies the long-standing public policy that “the

human being does sometimes have need of a place of penitence and

confession and spiritual discipline. When any person enters that secret

chamber, this statute closes the door upon him, and civil authority turns

away its ear.” Reutkemeier v. Nolte, 179 Iowa 342, 350, 161 N.W. 290,

293 (1917). Earlier versions of the statute cloaked communications with

“minister[s] of the gospel” and “priest[s] of any denomination.” Id. at 346,

161 N.W. at 292 (quoting Iowa Code Supp. § 4608 (1913)). Today, the

statute vests the privilege within “member[s] of the clergy.” Iowa Code

§ 622.10(1) (2017).

Plaintiffs seize upon the word “clergy” and insist that, here, the

elders are not members of the clergy and therefore do not qualify.

Although a male member of the church need not complete formal

theological training, elders are, nevertheless, formally regarded as

spiritual leaders. The Church’s governing documents task the elders

with “continuing with prayer,” “maintain[ing] the purity of the Word and

Sacraments,” “assist[ing] in catechizing the youth,” “visit[ing] the

members of the congregation according to their needs,” and “engag[ing]

in family visiting.” Parishioners are expected to submit to the elders’

authority with respect to matters of doctrine and spirituality.

Accordingly, applying the priest–penitent privilege to counseling or

44

guidance communications with elders furthers the express purpose of

the privilege, and the district court correctly extended the privilege to

otherwise qualifying elder communications. See Reutkemeier, 179 Iowa

at 346, 161 N.W. at 292 (“What is a ‘minister of the gospel’ within the

meaning of this statute? The law as such sets up no standard or

criterion. That question is left wholly to the recognition of the

‘denomination.’ ”).

Importantly, however, the elders are more than spiritual leaders.

They also oversee the Church’s operations and perform supervisory and

administrative tasks. Communications related to governance or

administration are plainly outside the scope of the clergy privilege, as

they are not related confidential communications necessary to discharge

the elders’ religious duties. For example, the Church confirmed during

oral argument that supervising a minister is a purely secular task.

Accordingly, any statements relating to the elders’ supervision of

Edouard, or lack thereof, are not covered by the privilege, as they are not

necessary for the discharge of the elders’ religious duties. The clergy

privilege ensures members of the Church may confide in an elder without

fear of a subsequent disclosure in a judicial proceeding. It does not,

however, encompass administrative or otherwise secular

communications that happen to be uttered by an elder with some

religious duties.

Plaintiffs have requested we review the court’s application of the

clergy privilege to several documents identified only by Bates number.

Because we cannot view the documents themselves, we are unable to

determine whether nonprivileged information was erroneously withheld.

On remand, plaintiffs may petition to have certain orders reconsidered in

light of the principles we have clarified today. With respect to the Board

45

of Elder meeting minutes, any discussion of confidential communications

made pursuant to the elders’ duties as religious counselors are

privileged. Communications relating to the elders’ secular duties, such

as supervision, governance, and administration, are beyond the scope of

the privilege and may not be withheld.

E. Disputed Documents. In cases that involve sensitive issues

such as assault and exploitation, we understand that the litigation

process may impose hardship on clients and, sometimes, even counsel.

Our rules of professional responsibility and standards of decorum

instruct that counsel should seek to resolve disputes promptly, in a civil

and reasonable manner, even in cases touching upon personal and

trying topics. On remand, we emphasize counsels’ obligation to act in

good faith when resolving discovery disputes and avoid unnecessary

court involvement.

The final matter in this case is the disputed production of over 100

documents, identified on appeal only by Bates number. Plaintiffs allege

the listed Bates numbers represent challenged documents that were

either never submitted to the court for review or were deemed

nonprivileged yet never produced.

The first group of documents 5 are indeed documents that were

deemed nonprivileged yet never produced. The documents, relating to

Reverend Barnes, were challenged in the plaintiffs’ second motion to

compel. They were listed in the defendant’s privilege log, reviewed by the

court, and determined not to be privileged in the court’s second

supplemental ruling on plaintiffs’ motion to compel. It appears from the

5Covenant Reformed Church (CRC): 0095, 0098, 0100, 0110, 0111–12, 0113–

14, 0137, 0138, 0139, 0143, 0144–45, 0148, 0149, 0151, 0154, 0155–56, 0164, 0165–

66, 0167–69, 0173, and 0174.

46

record that defendant never produced these documents, in contravention

of the court’s order. Thus, defendant must produce these documents on

remand.

The second group of documents 6 also relate to Reverend Barnes.

In the court’s ruling on plaintiffs’ second motion to compel, it instructed

that the defendant need not produce any documents identified as

privileged in its log. All of the documents in this group were identified as

privileged in the defendant’s log. The court then ordered that if plaintiffs

“feel that some specific letter should be produced, it will be incumbent on

them to identify that specific letter . . . within 20 days of the filing of this

ruling.” Based on our review of the record, it appears plaintiffs failed to

identify these documents within twenty days. Accordingly, the

documents in this group need not be produced.

The third group of documents 7 are minutes of three Executive

Committee meetings in the summer of 2014—over three years after

Edouard’s misconduct came to light. The documents appear to relate to

an investigation into David Te Grotenhuis and Steven Runner. The

district court’s ruling on plaintiffs’ second motion to compel found the

investigation to be outside the scope of the lawsuit and not discoverable.

We agree and find these documents need not be produced on remand.

The fourth group of documents 8 are various papers that the

defense claimed as privileged in their February 29 and March 16, 2016

6CRC: 0096–97, 0099, 0106, 0109, 0115, 0117, 0118–19, 0120, 0121–22, 0123,

0124, 0125–26, 0127–28, 0129, 0130–32, 0133, 0134, 0135, 0136, 0140, 0142, 0157–

58, 0159–60, 0175, 0176, 0177, 0178–79, 0180, 0181, 0182–83, 0184, 0185, 0186,

0187–88, 0189, 0190, 0191–92, 0193, 0194–95, 0196–97, 0198–99, 0200–02, 0203–04,

0205, 0206–07, 0208, 0209, and 0211–12.

7CRC: 0267, 0268, and 0269.

8CRC 2329; De Jong 093–0102; Te Grotenhuis 0105–06; Hartman: 0229, 0230,

0231, 0313–14, 0314–17, 0323, 0346, and 0377–78.

47

supplemental production and privilege log. The plaintiffs promptly

challenged each of these documents and requested they be submitted to

the court for in camera review in two letters to defense counsel dated

March 28 and April 1, 2016. The defendant never submitted the

documents for review. Although the plaintiffs challenged the documents

before the discovery period closed on April 21, the district court

erroneously found that “discovery is closed,” and the “documents now

challenged by plaintiffs were identified as privileged long ago and not

challenged until now.” Because plaintiffs’ challenges were timely,

defendant must produce the documents to the court for in camera review

on remand.

The fifth group of documents 9 are notes of several Board of Elder

meetings. Defendant initially produced the documents to the plaintiffs,

yet improperly redacted “nonresponsive” information from the

documents. However, after a challenge from the plaintiffs, it appears

defendant produced complete copies of these pages in its March 1, 2016

supplemental production. Thus, plaintiffs have already received these

documents.

The final group of documents 10 were included in plaintiffs’ fourth

motion to compel. Although the documents are identified as relating to

“Te Grotenhuis,” a thorough review of the record has failed to adduce any

indicia of what these documents actually contain. We therefore cannot

discern whether the documents relate to the investigation of David

Te Grotenhuis, which was deemed beyond the scope of the suit or some

other discoverable matter. Because plaintiffs appear to have challenged

9Veenstra: 001, 002, 003, 004, 005, 006, 009, and 011.

10Te Grotenhuis: 0107–10, 0111–14, 0115–17, 0118–19, 0120, 0121–22, 0125–

27, and 0128.

48

these documents prior to the close of discovery, defendant must submit

these documents for in camera review on remand.

Plaintiffs further challenge several individual documents. One

such document, CRC–2379, is the minutes of a Board of Elders meeting.

A portion of the document was challenged and deemed privileged in the

court’s ruling on plaintiffs’ first motion to compel. However, when

defense counsel produced the document, it redacted an additional

portion of the document, Article 27, and claimed it was privileged. The

plaintiffs challenged the new redaction in a letter dated March 28, 2016,

yet defense counsel never submitted the newly redacted document for

in camera review. Accordingly, plaintiffs challenged the document within

the discovery period, and counsel must submit it for in camera

inspection on remand.

Plaintiffs additionally wish to have document Van Mersbergen

0266 submitted for inspection. The document is a letter from Dennis

Van Gorp to Norman Van Mersbergen dated September 3, 2011. It was

claimed as privileged in defendant’s October 20, 2015 privilege log. In

plaintiffs’ fourth motion to compel, which was filed before discovery

closed, plaintiffs allege they challenged the document, and it was never

submitted to the court. On remand, defendant must submit the

document for in camera review.

Finally, on March 16, 2016, defendants produced the minutes for a

June 20, 2011 Board of Elders meeting. The minutes provided that

Reverend Cammenga submitted an exit report, although the report was

not attached to the produced minutes. On March 28, plaintiffs noticed

this oversight and requested that defendant produce

Reverend Cammenga’s report. Defendant never produced the report. In

their response to plaintiffs’ fourth motion to compel, defendant attached

49

a copy of the report but redacted the entirety of the document except

“Dear Dennis” and “With Christian Love, Pastor Cammenga.” The

district court then held that “the defendants have now produced that

report per the plaintiffs’ request and no ruling is necessary.” However,

because defendant failed to produce the report in a timely manner,

plaintiffs were kept from challenging the claimed privilege and the

document’s wholesale redaction. Accordingly, on remand, defendant

must submit the document for in camera inspection, and the court must

determine if the entire report is privileged.

IV. Conclusion.

Because we find the First Amendment does not bar negligent-

supervision claims against religious entities, and Anne’s claim is not

time-barred, we reverse the judgment of the district court. We affirm the

summary adjudication of plaintiffs’ defamation claims. On remand,

defendant must produce the identified documents for in camera

inspection.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

All justices concur except Hecht, J., who takes no part.