# Destefano v. Grabrian > Supreme Court of Colorado · October 17, 1988 · 12 Brief Times Rptr. 1452 URL: https://www.frixlaw.com/law-library/cases/9850921 ## Case - **Full name:** Robert DESTEFANO and Edna Destefano, Petitioners, v. Dennis GRABRIAN and Diocese of Colorado Springs, Respondents - **Court:** Supreme Court of Colorado - **Decided:** October 17, 1988 - **Citations:** 12 Brief Times Rptr. 1452; 763 P.2d 275; 1988 Colo. LEXIS 169; 1988 WL 106301 - **Precedential status:** Published - **Opinion:** Concurrence by Quinn - **Judges:** Erickson, Quinn, Mullarkey, Lohr, Kirshbaum - **Cited by:** 157 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9850921 ## How later opinions describe it (automated extraction) - finding judicial recognition of clergy malpractice action creates a "formidable obstacle to bona fide religious ... counseling [that] would fly directly in the face of the Free Exercise Clause" - holding that the plaintiff, who had engaged in a sexual relationship with the Catholic priest who was counseling her, stated a cause of action for breach of fiduciary duty - finding claims for mental pain and suffering, based on theories of negligence and intentional infliction of emotional distress, "plainly set forth claims for alienation of affections and criminal conversation" - finding fiduciary relationship under Colorado law between parishioner and clergyman, where priest engaged in sexual relations with parishioner who had consulted priest for marriage counseling - finding priest who was counseling plaintiff entered into a fiduciary relationship ## Opinion text QUINN, Chief Justice, specially concurring: I join Justice Mullarkey’s special concurrence and specially concur in the result reached by the majority. I write separately to state my view that recognizing the so-called tort of “clergy malpractice” would not only contravene the legislative decision to exempt religious ministers from compliance with the provisions of the statutory scheme dealing with psychologists and other mental health practitioners, § 12-43-114(10), 5 C.R.S. (1985); see also ch. 88, sec. 1, § 12-43-215(1), 1988 Colo. Sess.Laws 535, 543-44, but also would derogate the constitutionally protected interest of ministers, priests, and rabbis to conduct bona fide marriage counseling as guaranteed by the Free Exercise Clause of the First Amendment. U.S. Const, amend. I. I agree with the majority that Edna and Robert Destefano have stated cognizable claims for breach of fiduciary duty, and that Edna also has stated a claim for outrageous conduct. A fiduciary relation “exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation.” Restatement (Second) of Torts § 874 comment a (1977). Liability for breach of fiduciary duty is not dependent solely upon agreement or contract between the fiduciary and the beneficiary but results from the relation itself. Id. No one can reasonably dispute the fact that the relation between a Catholic priest and a person of the same faith who is receiving marriage counseling from the priest is a fiduciary relation founded on utmost trust and confidence. When, as here alleged, the priest abuses his position of trust by engaging in sexual relations with the counselee, the torts of breach of fiduciary duty and outrageous conduct are adequate to the task of providing the counselee with an effective remedy for this type of egregious misconduct. I also agree that the obvious legislative intent behind the statutory scheme regulating psychologists and other mental health practitioners is to exempt duly ordained *290 ministers, priests, and rabbis from the licensing and regulatory scheme when they pursue their ministerial responsibilities in serving the spiritual needs of their constituencies. See § 12-43-114(10), 5 C.R.S. (1985); see also ch. 88, sec. 1, § 12-43-215(1), 1988 Colo.Sess.Laws 535, 543-44. This exemption proceeds from an obvious recognition of the fact that married persons experiencing marital difficulties frequently choose to obtain marriage counseling from their minister, priest, or rabbi precisely because they desire to resolve their difficulties in accordance with their religious beliefs. A rule that would subject the religious minister to the standard of practice applicable to licensed psychologists or marriage counselors in the community would endanger the very distinctions which make religious counseling desirable and which the General Assembly intended to protect against state regulation. Moreover, the Free Exercise Clause of the First Amendment protects not only against the governmental prohibition of bona fide religious practices but also against the governmental secularization of such practices. See, e.g., Hobbie v. Unemployment Appeals Commission, 480 U.S. 136 , 107 S.Ct. 1046 , 94 L.Ed.2d 190 (1987); Thomas v. Review Board, 450 U.S. 707 , 101 S.Ct. 1425 , 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963). Legislative or judicial recognition of the so-called tort of “clergy malpractice” would be fundamentally flawed on two counts. First, it would result in secularizing various forms of sectarian religious counseling that are entitled to constitutional protection. Second, it would undoubtedly result in deterring some ministers, priests, and rabbis from engaging in marriage counseling in order to avoid any potential liability for not conforming to standards applicable to licensed psychologists or licensed marriage therapists, or, at the very least, incline them to adjust their counseling method to standards applicable to secular licensed counselors. The resulting effect on the religious counselor’s right to engage in bona fide religious marriage counseling, independently of secular standards applicable to licensed professionals, would be all too clear. Such a formidable obstacle to bona fide religious marriage counseling would fly directly in the face of the Free Exercise Clause of the First Amendment. I am authorized to say that Justice MUL-LARKEY joins me in this special concurrence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9850921. Public record. Not legal advice.