Petition for Writ of Certiorari — Carroll v. Alberts

Supreme Court, U.S.

FILED

85 sit 5 0 SEP 3 1989

No. JOSEPH F. SPANIOL, JR,

CLERK

In the

Supreme Court of the United States.

October Term, 1985

EDWARD G. CARROLL and

JOHN E. BARCLAY

Petitioners

v

WILLIAM E. ALBERTS and

DONALD T. DEVINE

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME JUDICIAL COURT OF MASSACHUSETTS

PAUL R. DEVIN

DEBORAH S. GRIFFIN

RIPLEY E. HASTINGS

PEABODY & ARNOLD

One Beacon Street

Boston, MA 02108

(617) 523-2100

FLORENCE E. FREEMAN

FREEMAN & WHITE

483 Boston Post Road

Weston, MA 02193

(617) 893-1510

TILLMA ASSOCIATES, LEGAL PRINTERS, BOSTON.

i

QUESTIONS PRESENTED

1. Whether the First and Fourteenth Amendments of the

United States Constitution prohibit the secular state court

from adjudicating a dispute between a minister of the

United Methodist Church and his immediate superiors

within the Church, in a suit for inducing breach of

confidentiality between the minister and his psychiatrist,

resolution of which turns, under state common law, upon

(a) the reasonableness of the superiors’ belief that Church

law not only permitted but required them to make inquiry

about the minister’s mental health; (b) express or implied

consent by the minister to such inquiry by virtue of his

status as a clergyman and his consequent submission to

Church law; and (c) proof of damages caused by such

breach, including damages claimed because of the minister

having been placed in involuntary retirement by the Annual

Conference of the Church.

2. Whether the First and Fourteenth Amendments of the

United States Constitution prohibit the secular state court

from inquiring, either in the above-described dispute

between a minister and his superiors within the Church or

in the underlying suit against his psychiatrist for breach

of confidentiality, into the alleged causal connection

between the claimed breach of confidentiality and the deci-

sion of the 1973 Annual Conference of the Southern New

England Conference of the United Methodist Church,

whose members, several hundred clergymen, voted to place

the minister-plaintiff in involuntary retirement.

ii

Supreme Court of the United States.

October Term, 1985

No.

EDWARD G. CARROLL and

JOHN E. BARCLAY

Petitioners

v.

WILLIAM E. ALBERTS and

DONALD T. DEVINE

Respondents

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

Table of Contents

pe eee iv

ET POO ee ee eee eee l

Statement of Jurisdictional Grounds............... l

COMING PCIVEIIOES iwc cece is eeecetes 2

ee. i eas Cok ea dee Secceess 3

ea edb ss 6 web b's 0s baee 0 4 b.ed.0 w0.4% 0 7

Appendix A—Order of the Massachusetts Supreme

rs at hb ss Raw Ubined am > A.1

Appendix B—Opinion of the Massachusetts Supreme

a is a als AON Re DOA O A.2

Appendix C—Defendants’ Motions for Summary

EE ee Te ee A.19

Appendix D—Affidavit of John E. Barclay .... A.22

Appendix E—Affidavit of Bishop Joseph H.

I Ea ee ek eek Ws 6 thee iba nesese A.26

Appendix F—Memorandum of Decision on Motions

for Summary Judgment .............0ees008- A.76

Appendix G—Motion for Protective Order..... A.83

Appendix H—Docket ........... 0.0020 e eee A.85

Appendix I—Extract from Exhibit to Plaintiffs’

Third Affidavit in Opposition to Motion for

I ace c crea scans te secs A.91

Appendix J—Complaint .................006- A.93

Appendix K—Memorandum on Status of the Parties

and Causes of Action on Report ............. A.98

Appendix L—Extract from Plaintiffs’ Affidavit in

Opposition to Motion for Summary Juagment.. A.101

iv

Table of Authorities

CASES

Botkin v. Miller,

190 Mass. 411, 77 N.E. 49 (1906).............. 14

Chemawa County Golf v. Wnuk,

9 Mass. App. Ct. 506, 402 N.E.2d 1069 (1980) .. 14

Cohen v. Beneficial Industrial Loan Corp.,

ee ee ae ee ca ccebusce |

Cox Broadcasting Corp. v. Cohn,

OD ec ce cin ane cckcnincwasnes i a

Jones v. Wolf,

Ee DED so i ood sec cv eevee ese 7; 42

New York v. Cathedral Academy,

Ee i aw wav ec tas ekuwe 2

New York v. Quarles,

ean WS witanty Oe tone 28 - $90, 106 S.C.

pee ES EN a ee ee 2

Panko v. Consolidated Mutual Ins. Co.,

Ee Wate We Se Gs WP bk cv 5 kc se pe vivccac 14

Presbyterian Church in the U.S. v. Mary Elizabeth

Blue Hill Memorial Presyterian Church,

Oe GP WE RE oa va a ssh bce cbs ce asee es 7, 12

Serbian Eastern Orthodox Diocese v. Milivojevich,

426 U.S. 696, reh. denied, 429 U.S. 873

SN Soc ei babies y eeucasccedans 7, 9, 12, 16, 20

Watson v. Jones,

80 U.S. (13 Wall.) 679 RE Ess aie a awrite a oe

Wheeler v. Roman Catholic Archdiocese of Boston,

378 Mass. 58, 389 N.E.2d 966 (1979)........... 12

CONSTITUTIONAL PROVISIONS

United States Constitution, First

Amendment............. as oy ae ee oe 0G, FT, 18

United States Constitution, Fourteenth

I 6G sewed 8 < od BESS SS OG Me RR y

]

OPINION BELOW

The opinion of which review is sought is Alberts v.

Devine, 395 Mass. 59, __. N.E.2d _____ (1985).

STATEMENT OF JURISDICTIONAL GROUNDS

On June 4, 1985, on appeal and on reported questions,

the Massachusetts Supreme Judicial Court entered the

Order (Appendix A) and opinion (Appendix B) of which

review is sought. Jurisdiction of this Court is based upon

28 U.S.C. §1257(3). The rights, privileges and immunities

of the Petitioners under the First and Fourteenth Amend-

ments of the United States Constitution were claimed and

set up in the proceedings in the Superior Court of the

Commonwealth of Massachusetts, the trial court below.

No rehearing was sought from the Supreme Judicial Court.

The Supreme Judicial Court’s decision has finally deter-

mined the federal issues in this case and is ripe for review

in this Court under 28 U.S.C. §1257(3). The highest court

in the Commonwealth of Massachusetts has clearly rejected

the Petitioners’ federal constitutional defenses by reversing

the grant of summary judgment entered by the trial court

in favor of the Petitioners and by vacating the protective

order entered by the trial court on constitutional grounds.

These defenses and claims are now foreclosed in any further

proceedings in the Superior Court. Upon remand and trial,

regardless the outcome, the Petitioners and their Church

will be subject to precisely that civil inquiry from which

they have claimed protection under the First and Fourteenth

Amendments. Once a trial is had, it will be too late effec-

tively to review the present order and Petitioners’

constitutional rights will have been lost irreparably. See Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469, 482 n. 10

(1975), citing Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541, 546 (1949). No possible developments upon

remand, short of settlement, could eliminate or minimize

this risk of constitutional harm. Since further proceedings

cannot remove or otherwise affect this threshold federal

issue, and since this federal issue cannot be raised at any

subsequent time in the state courts, the Supreme Judicial

Court’s decision is final for purposes of review in this

Court. See, Cox, supra at 476-486; accord, New York v.

Quarles, ___ U.S. ___., 81 L. Ed. 2d 550, 554 n. 1, 104

S. Ct. (1984). Cf. New York v. Cathedral Academy,

434 U.S. 125, 128 n. 4 (1977) (where further proceedings

cannot affect threshold federal issue, appellate decision is

final for purposes of review by this Court).

CONSTITUTIONAL PROVISIONS

UNITED STATES CONSTITUTION

FIRST AMENDMENT

Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for redress of

grievances.

FOURTEENTH AMENDMENT §1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall eny State deprive any person |

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

3

STATEMENT OF THE CASE

Petitioners, Bishop Edward G. Carroll and Rev. John

E. Barclay, and Respondent Rev. William E. Alberts at

all relevaat times were ordained ministers of the United

Methodist Church (‘‘the Church’’). In 1972, Rev. Alberts

was pastor at Old West Church in Boston, Massachusetts,

which was within the District of which Rev. Barclay was

Superintendent and within the Southern New England Con-

ference of which Bishop Carroll was Bishop. Bishop Carroll

and Rev. Barclay thus were Rev. Alberts’ immediate

superiors within the Church.

Church law is set forth in the Book of Discipline and

defines the duties and relationships among members of the

ordained clergy. It provides that each minister is bound

to accept whatever appointment is made for him by his

Bishop on an annual basis. The Book of Discipline charges

a Bishop with assessing annually, in consultation with the

minister’s District Superintendent, the emotional and

mental condition of the minister as well as other criteria

affecting his ability to perform the ministerial duties of any

particular appointment. Ultimately, a minister’s eligibility

for appointment is determined, under Church law, by the

Annual Conference for each region within the Church,

although it is the Bishop who selects the particular appoint-

ment. The persons entitled to vote at the Annual Con-

ference on eligibility for appointment (or other ‘‘relation’’

such as retirement) are the ordained clergy within the

Conference.

The Book of Discipline also defines the responsibilities

of a District Superintendent to include counselling and

service as pastor to the clergy within his District.

In early spring, 1973, Bishop Carroll and Rev. Barclay

became concerned about Rev. Alberts’ condition. He had

been treating with a psychiatrist, Dr. Donald T. Devine,

for many years but had terminated that relaticnship rather

4

stormily in November, 1972. He had taken a leave of

absence from his church in January, 1973. In March, 1973,

he performed a marriage ceremony for two homosexual

men against the wishes of Bishop Carroll. It was undecided

to what post, if any, he should be appointed at the Annual

Conference in June, 1973.

Against that background, on April 9, 1973, Bishop

Carroll and Rev. Barclay met with Dr. Devine to talk about

Rev. Alberts. As indicated in the record, both Bishop

Carroll and Rev. Barclay were interested in helping Rev.

Alberts, in counselling him, in addressing the ‘se of

annual appointment or further leave of absence in a way

beneficial to his mental health, in short, in carrying out

their pastoral and administrative duties as his superiors.

Precisely what was said among Dr. Devine, Bishop

Carroll and Rev. Barclay is in dispute. Rev. Alberts has

alleged that whatever was said amounted to a breach of

corfidentiality by Dr. Devine wrongfully induced by Bishop

Carroll and Rev. Barclay.

Following that meeting, Rev. Alberts’ mental condition

and his performing the gay marriage were matters of discus-

sion in meetings of various subcommittees of the Church

concerned with appointments, including the Board of

Ministry. After Bishop Carroll raised these issues with Rev.

Alberts, Rev. Alberts drew them to the attention of the

press. Various proposals were made by the Church to

Alberts regarding his status for the year 1973-74, but no

agreement was reached. Finally, at the June, 1973, Annual

Conference, Bishop Carroll and the Board of Ministry

recommended that Rev. Alberts be placed in the retired

relation' for the 1973-74 year. After extensive discussion,

including a lengthy statement by Rev. Alberts himself, the

over three hundred clergy members of the Annual

Conference so voted.

‘Retirement is a recognized relation within the Church. It does not

amount to expulsion or loss of status as an ordained minister.

5

The Book of Discipline establishes a tribunal within the

Church which has jurisdiction to hear and try charges of

misconduct brought by a minister against a Bishop or a

District Superintendent. Rev. Alberts never filed charges

against Bishop Carroll or Rev. Barclay for having spoken

with Dr. Devine, nor did he invoke the jurisdiction of the

Church tribunal in any way.’ Instead, he brought this civil

action in the secular state courts in Massachusetts, alleging

that his superiors induced Dr. Devine to breach his duty

of confidentiality. One defense raised by Bishop Carroll

and Rev. Barclay was that they were justified by Church

law in doing what they did and that the First and Four-

teenth Amendments of the United States Constitution

precluded the state courts from adjudicating the content

and applicability of Church law. This issue was brought

before the trial court on motion for summary judgment

(Appendix C), supported by an affidavit of Rev. Barclay

(Appendix D) and an affidavit of another Methodist Bishop

(Appendix E) who stated that Church law, as expressed

in the Book of Discipline and understood and applied by

Bishops and other clergymen in the Church, authorized the

kind of inquiry made by Bishop Carroll and Rev. Barclay.

The affidavit further stated that if Rev. Alberts felt he had

been wronged thereby, he could have sought a Church trial.

The affidavit also explained that the United Methodist

Church is organized in hierarchical fashion. These asser-

tions as to the content of Church law were uncontradicted

in the record and the motion for summary judgment was

allowed on constitutional grounds (Appendix F).

*His failure to avail himself of the Church tribunal to bring charges

against Bishop Carroll and Rev. Barclay should not be confused with

a ruling by Bishop Carroll at the Annual Conference that charges against

Rev. Alberts, consisting of eight reasons for the recommendation of

retirement, were out of order.

6

The Petitioners also made a motion for a broad protec-

tive order against further inquiry either in pretrial discovery

or at trial into the deliberations and decisions made by the

Annual Conference or by any Boards or committees of the

Church leading up to or constituting the recommendation

and vote at the Annual Conference to place Rev. Alberts

in the retired relation (Appendix G). Rev. Alberts had sued

Dr. Devine as well as Rev. Barclay and Bishop Carroll and

claimed as damages his loss of position in the Church. In

order to establish a causal connection between that loss and

a breach of duty by Dr. Devine or the clerical defendants,

it would be necessary for the state courts to probe into the

decision-making processes of the Church to determine what

part, if any, information revealed by Dr. Devine played

in shaping the decisions of the ministers involved in that

process. The motion for protective order was allowed by

the Superior Court (Appendix H, Item 71) to prevent such

an inquiry which would have violated the separation of

church and state required by the First and Fourteenth

Amendments.

These rulings were reversed on review’ by the

Massachusetts Supreme Judicial Court, which held that:

(1) the case does not involve a dispute about religious

faith or doctrine nor about church discipline or

internal organization;

(2) even if the Constitution precludes inquiry into the

content of Church law so that the court must assume

Bishop Carroll and Rev. Barclay had the right under

Church law to act as they did, the Constitution does

not preclude imposition of liability; and

(3) the Constitution does not bar inquiry into the

Church’s proceedings culminating in Rev. Alberts’

retirement.

>The case went to the Supreme Judical Court on an appeal of the

entry of Summary Judgment and on four reported questions which

appear at 395 Mass. at 63. The Supreme Judicial Court answers the

questions: (1) yes, (2) no answer necessary; (3) no; and (4) no. Only

questions (3) and (4) are relevant to this Petition.

7

ARGUMENT

A. THE STATE COURT’S FORMULATION OF THE

ELEMENTS OF AN ACTION FOR INDUCING

BREACH OF CONFIDENTIALITY TO INCLUDE

THE REASONABLENESS OF ONE’S BELIEFS, IF

APPLIED TO THE CLERICAL DEFENDANTS,

VIOLATES THE FIRST AND FOURTEENTH

AMENDMENTS

The Supreme Judicial Court took notice of the holdings

of this Court ‘‘that the First Amendment prohibits civil

courts from intervening in disputes concerning religious

doctrine, discipline, faith, or internal organization. Jones

v. Wolf, 443 U.S. 595, 602 (1979). Serbian E. Orthodox

Diocese for the U.S. & Can. v. Milivojevich, 426 U.S. 696,

709, reh. denied, 429 U.S. 873 (1976). Presbyterian Church

in the U.S. v. Mary Elizabeth Blue Hull Memorial

Presbyterian Church, 393 U.S. 440, 449 (19€3). Watson

v. Jones, 80 U.S. (13 Wall ) 679, 727 (1871): 395 Mass.

at 72 (Appendix B, page ...15). However, the Supreme

Judicial Court failed to apply that rule properly to this case

because it characterized the disputes in this case as not

involving religious doctrine, discipline, faith or internal

organization. 395 Mass. at 73 (Appendix B, page A.16).

That characterization appears without analysis or explana-

tion and is wrong.

The Supreme Judicial Court has now defined the

elements of a cause of action for inducing breach of

confidentiality under Massachusetts law:

To establish liability the plaintiff must prove that:

(1) the defendant knew or reasonably should have

known of the existence of the physician-patient rela-

tionship; (2) the defendant intended to induce the

physician to disclose information about the patient or

8

the defendant reasonably should have anticipated that

his actions would induce the physician to disclose such

information; and (3) the defendant did not reasonably

believe that the physician could disclose that informa-

tion to the defendant without violating the duty of

confidentiality that the physician owed the patient.

395 Mass. at 70-71 (emphasis added) (Appendix B, pages

A.13-14). Under this formulation, as appiied to the clerical

defendants, the jury would be unable to determine what

the beliefs of the defendants were or the reasonableness

of those beliefs without evidence of the content of Church

law and the interpretation of that law by Bishop Carroll

and Reverend Barclay. The Petitioners would be required

to prove they were, or believed that they were, in going

to talk with Dr. Devine, performing administrative duties

for the Church with respect to a minister under their charge

and carrying out their sacred calling to minister to one

toward whom they had or perceived a duty of pastoral care.

Such beliefs would underlie a belief that, because of their

relationship to Rev. Alberts in the Church and because of

Rev. Alberts having subscribed voluntarily to the same

system of Church organization and religious beliefs by

becoming a minister of the Church, they could speak with

Dr. Devine without subjecting him or themselves to civil

legal liability. These issues clearly involve religious doctrine,

discipline, faith and internal organization.

Finally the Petitioners would have to defend their beliefs

as reasonable! It is difficult to conceive of a rule of law

more offensive to the First Amendment. That ordained

clergymen should have to defend the reasonableness of their

beliefs in a secular court, before a jury of persons who do

not share their religious views, is intolerable. Application

of the rule to the Petitioners contravenes the First and

9

Fourteenth Amendments and the decisions of this Court

cited above.

B. THE PETITIONERS’ FIRST AMENDMENT

RIGHTS OUTWEIGH THE INTEREST OF THE

STATE IN PERMITTING REV. ALBERTS TO

LITIGATE AND RECOVER DAMAGES AGAINST

THE PETITIONERS

Having failed to perceive this case as one entailing

impermissible adjudication of religious doctrine, faith and

organization, the Supreme Judicial Court proceeded to

apply a balancing test more appropriately applied to legisla-

tion which regulates or prohibits certain religiously

motivated conduct. 395 Mass. at 73-74 (Appendix B, pages

A.16-17). None of the decisions of this Court relied upon

by the S:preme Judicial Court in applying a balancing test

involved common law tort issues as between a minister and

his superiors. None involved issues of ecclesiastical law as

it affects the relationship between a minister and his

superiors. None involved disputes which could and should

only have been brought before a Church tribunal. None

involved a searching inquiry into the decision-making pro-

cesses of Church bodies regarding the status within the

Church of one of its ministers. As will be discussed in this

Petition at pages 12-20, infra, this case should be decided

under the rule in Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696 (1976), reh. denied, 429 U.S.

873 (1976), and similar cases.

However, even if a balancing test should be applied to

this case, the Supreme Judicial Court balanced the wrong

interests, drew the wrong conclusions as regards the

imposition of liability on the Petitioners and failed to

conduct any balancing at all as regards an adjudication of

damages flowing from Dr. Devine’s alleged breach. With

regard to the imposition of liability the Supreme Judicial

10

Court weighed the Church’s ‘‘significant interest in assess-

ing the qualifications of their ministers, and in appointing

and retiring them’’ against a newly recognized ‘‘public

policy strongly [favoring] judicial recognition of a physi-

cian’s duty to honor the confidentiality of information

gained through the physician-patient relationship?’ 395

Mass. at 74 (Appendix B, page A.17).

In focusing upon the public interest in recognizing the

physician’s duty, the Supreme Judicial Court balanced the

wrong interest. Even if that interest is the appropriate

interest to be balanced against the Petitioners’ constitutional

rights, the latter should be regarded as outweighing the

former. Denying Rev. Alberts a recovery against Bishop

Carroll and Rev. Barclay, when he is free to proceed against

Dr. Devine, cannot possibly do harm to the public interest

in recognizing the physician’s duty.

The factor which should have been weighed against the

Petitioners’ religious freedom was the public interest, if any,

in restraining the clerical defendants from asking Dr.

Devine to violate his duty, if that is what they did. The

Supreme Judicial Court assumed in this analysis that

Church law did authorize the Petitioners to seek informa-

tion from the psychiatrist. 395 Mass. at 74 (Appendix B,

page A.17). Where Rev. Alberts had voluntarily united

himself to the Church, he must be held to have done so

with an implied consent to its government and was bound

to submit to it. Watson v. Jones, 80 U.S. (13 Wall.) 679,

728 (1872). Such implied consent necessarily extends to the

Petitioners’ inquiries of Dr. Devine, which were authoriz-

ed under Church law. Surely the public interest in reliev-

ing Rev. Alberts of the consequences of his having con-

sented to be governed by Church law in his relations with

Bishop Carroll and Rev. Barclay does not outweigh their

rights of freedom to engage in religiously motivated

11

conduct authorized under Church law. This was the balan-

cing which should have been performed, if at all. Religious

freedom is clearly the stronger value.

This conclusion is still more compelling when it is

recognized that Dr. Devine was free at all times to decline

to discuss Rev. Alberts with the Petitioners. Dr. Devine,

not the Petitioners, is and ought to be the ultimate guardian

of the confidentiality of information entrusted to him by

his patient. With that factor added to the scales, the

Petitioners’ constitutional rights must prevail.

As regards the issue of damages flowing from a breach

by Dr. Devine, the Supreme Judicial Court did not conduct

any balancing of interests at all. It merely stated a conclu-

sion that ‘‘the First Amendment does not bar judicial

inquiry into the church’s proceedings culminating in

Alberts’ failure to gain reappointment?’ 395 Mass. at 75

(Appendix B, page A.18). If some balancing of interests

is appropriate, one would most likely balance a supposed

public interest in seeing Rev. Alberts compensated for one

particular item of claimed damages against the interests not

only of Bishop Carroll and Rev. Barclay but of all members

of the Southern New England Conference in conducting

their deliberations as to the status and appointment of their

ministers without fear of having them subjected to scrutiny

by the secular courts. Here again. the religious freedoms

protected by the First Amendment outweigh any interest

the public might have in the amount of Rev. Alberts’

recovery.

C. THE EXISTENCE OF A TRIBUNAL WITHIN THE

CHURCH FOR THE ADJUDICATION OF

DISPUTES AMONG CHURCH MEMBERS, AND

REV. ALBERTS’ FAILURE TO AVAIL HIMSELF

OF THAT TRIBUNAL, REQUIRED SUMMARY

JUDGMENT IN FAVOR OF THE PETITIONERS

ON FIRST AMENDMENT GROUNDS

12

In numerous cases, both this Court and the

Massachusetts Supreme Judicial Court have held that if

a hierarchical religious organization establishes its own

tribunals for resolving disputes among its members, the civil

courts will defer to the religious tribunals and will not

undertake to adjudicate those disputes. Presbyterian

Church in the U.S. vs. Mary Elizabeth Blue Hull Memorial

Presbyterian Church, 393 U.S. 440, 443 (1969); Wheeler

v. Roman Catholic Archdiocese of Boston, 378 Mass. 58,

389 N.E.2d 966 (1979). See also Jones v. Wolf, 443 U.S.

595 (1979); Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696, reh. denied, 429 U.S. 873

(1976); Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872).

This rule should have been applied below in affirming

the allowance by the Superior Court of the clerical defen-

dants’ Motion for Simmary Judgment. In order to

establish a claim for tortious inducement of breach of con-

fidentiality, the plaintiff must show that Rev. Barclay and

Bishop Carroll did not believe they had the authority or

the duty to make an inquiry of Rev. Alberts’ former

psychiatrist regarding his mental and emotional needs. The

existence or nonexistence of such authority and duty, and

the reasonableness of the petitioners’ beliefs therein, are

rooted in the ecclesiastical law of the Church. As a

‘‘member in full connection’’ of the Church, Rev. Alberts

had voluntarily submitted to Church law. The Book of

Discipline provides:

Members in full connection with an Annual Con-

ference by virtue of their election and ordination are

bound in special covenant with all the ordained

ministers of the Annual Conference. In the keeping

of this covenant they perform the ministerial duties

and maintain the ministerial standards established by

those in the covenant. They offer themselves without

13

reserve to be appointed and to serve as their superiors

in office may direct. They live with their fellow

ministers in mutual trust and concern and seek with >

them the sanctification of the fellowship. Only those

shall be elected to full membership who are of unques-

tionable moral character and genuine piety, sound in

the fundamental doctrines of Christianity and faithful

in the discharge of their duties.

(Appendix E, page A.52).

As in the Presbyterian Church and Wheeler cases, the

Church is a hierarchical church which, by its own rules and

regulations, has created tribunals for adjudicating disputes

among its members. Affidavit of Joseph Yeakei,

Paragraphs 4, 9 and 10 (Appendix E, pages A.27-28). If

Rev. Alberts wished to assert that the Bishop and the

District Superintendent were exceeding the scope of their

authority in seeking information from Dr. Devine, he could

have and should have raised charges against them within

the ecclesiastical judicial system and sought a determina-

tion of that question by the body best situated, and indeed

exclusively permitted, to interpret Church law. The effect

of the Court’s order and decision is to intrude into the intra-

church relationship among ordained clergy and to proscribe

consensual conduct which is based upon religious belief by

burdening that conduct with the threat of civil liability.

As in the Presbyterian Church and Wheeler cases, the

plaintiff failed to avail himself of the Church tribunal,‘

and resolution of this case cannot be achieved without

reference to Church law. As in Presbyterian Church and

‘The ruling out of order a motion made during the Annual

Conference to amend the recommendation of retirement of the plaintiff

to an allegation of charges against the plaintiff, was merely a parliamen-

tary ruling. (Appendix I, page A.92.) That ruling did not mean charges

could not have been made at a different time and place by plaintiff

against his superiors.

14

Wheeler, the Constitution of the United States required the

allowance of the Petitioners’ Summary Judgment Motion.

D. THE PLAINTIFF’S CLAIM OF DAMAGES IS A

COLLATERAL ATTACK ON THE POLITY OF

THE CHURCH, WHICH ATTACK IS PRO-

HIBITED BY THE UNITED - STATES

CONSTITUTION

In its opinion below, the Supreme Judicial Court did not

specifically enumerate damage as a requisite element in

establishing the tort of inducing breach of confidentiality.

However, in enunciating the existence of such a tort, the

Supreme Judicial Court likened it to other intentional torts,

395 Mass. at 71 (Appendix B, at page A.14), of which

damage is a required element. Panko v. Consolidated

Mutual Ins. Co., 423 F.2d 41, 44 n.4 (3d Cir. 1970)

(‘‘Whether plaintiff’s cause of action is viewed as one for

inducing breach of a contract with an implied term of

secrecy or one for inducing or participating in a breach of

fiduciary duty, plaintiff must show a causal connection

between the allegedly tortious conduct and the injury

complained of, even if the plaintiff establishes an inten-

tional unprivileged interference:’); Botkin v. Miller, 190

Mass. 411, 416, 77 N.E. 49 (1906) (in claim for interference

with advantageous relations based upon a disturbance at

plaintiff’s barber shop by a group oi Orthodox Jews in

protest that the shop was being kept open on Saturday,

**plaintiff did not go far enough to show that this distur-

bance was the cause of his loss of business. . . >”); Chernawa

County Golf v. Wnuk, 9 Mass. App. Ct. 506, 510, 402

N.E.2d 1069 (1980) (‘‘It is also of the essence in an action

for wrongful interference with contractual relationships that

the plaintiff suffer damages as a consequence of the defen-

dant’s conduct, and those damages cannot be conjectural

15

or speculative losses?’). In apparent recognition of his

obligation to establish actual causation of damages, Rev.

Alberts in this case has alleged, in Paragraph 7 of the

Complaint, ‘‘as a result of the disclosure alleged in

Paragraph 6, and using the information communicated

thereby as a public justification, Bishop Carroll caused the

Plaintiff not te be reappointed as Minister of Old West

Church....’’ (Appendix J, page A.94). He goes on to

allege loss of benefits and salary by reason of ‘‘the termina-

tion of his career as a Methodist Minister?’ (Appendix J,

pages A.94 and 95). In paragraph 6(b), he alleges that Peti-

tioners Carroll and Barclay communicated their opinions

of the Plaintiff’s mental health to ‘‘numerous individual

members of the Southern New England Conference as well

as the various boards, committees and subcommittees of

the Conference concerned with the appointment of its

ministers to local churches. . .?’ (Appendix J, page A.97).

For the same reason the state courts are prohibited from

inquiring into the question of whether Bishop Carroll and

Rev. Barclay were justified or reasonably believed they were

justified in talking to Dr. Devine, the United States

Constitution prohibits the courts from inquiring into the

criteria applied by the individual members, boards,

committees and subcommittees of the Southern New

England Conference in their recommendations and deci-

sions to place Rev. Alberts in retirement.

It is an undisputed fact that Rev. Alberts was retired by

vote of the Southern New England Conference of the

Church, upon recommendation of the Board of Ministry,

on or about June 7, 1973. Affidavit of John Barclay,

Paragraphs 6 and 7. (Appendix D, pages A.23-24). That

action was prescribed by the Book of Discipline, Paragraph

360, referred to in Reverend Barclay’s Affidavit. (Appen-

dix D, page A.24). In conducting the meetings and delibera-

16

tions and in finaliy voting retirement, the members of the

United Methodist church were exercising their constitu-

tional rights to select the clergy of their church. The Con-

ference, not the Bishop, was that body within the Church

charged with making such decisions concerning the selec-

tion of its clergy.

Inquiry into those deliberations and decisions is expressly

prohibited by the doctrine established by this Court in

Serbian Eastern Orthodox Diocese v. Milivojevich, 426

U.S. 696, reh. denied, 429 U.S. 873 (1976). In that case,

the plaintiff was a bishop of the defendant church who

had been suspended, removed and ultimately defrocked by

the church. He sought in a civil action to challenge that

decision:

Nor is there any dispute that questions of church

discipline and the composition of the church hierarchy

are at the core of ecclesiastical concern;.. .

Yet having recognized that the Serbian Orthodox

Church is hierarchical and that the decisions to sus-

pend and defrock respondent Dionisije were made by

the religious bodies in whose sole discretion the

authority to make those ecclesiastical decisions was

vested, the Supreme Court of Illinois nevertheless

invalidated the decision to defrock Dionisije on the

ground that it was ‘‘arbitrary’’ because a ‘‘detailed

review of the evidence discloses that the proceedings

resulting in Bishop Dionisije’s removal and defrock-

ment were not in accordance with the prescribed pro-

cedure of the Constitution and the penal code of the

Serbian Orthodox Church?’ [citation omitted] Not only

was this ‘‘detailed review’? impermissible under the

First and Fourteenth Amendments, but in reaching this

conclusion, the court evaluated conflicting testimony

concerning internal church procedures and rejected the

17

interpretations of relevant procedural provisions by the

Mother Church’s highest tribunals.

426 U.S. at 717-18.

As was clear in the instant case from the allegations of

the Complaint and the course of discovery up until the

hearing on Defendants’ Motion for Summary Judgment,

Rev. Alberts intended to have the state court conduct a

*‘detailed review’’ of the proceedings resulting in his retire-

ment. (See page 19, infra.) Without such evidence, he could

not establish the necessary causal relation between the alleg-

ed breach of confidence and damages flowing from his

retirement. Yet such inquiry is prohibited.

Because the undisputed facts below supported invocation

of the First and Fourteenth Amendments by Petitioners

Barclay and Carroll, the Superior Court below properly

allowed their Motion for Summary Judgment. The

Supreme Judicial Court should have answered the third

reported question ‘‘yes’’ and affirmed entry of summary

judgment.

E. THE SUPERIOR COURT BELOW PROPERLY IN-

VOKED THE FIRST AMENDMENT IN ENTERING

THE PROTECTIVE ORDER QUASHING SUB-

POENAS AND BARRING FURTHER DISSEMINA-

TION OR USE OF CHURCH-RELATED

MATERIALS BROUGHT OUT DURING

DISCOVERY IN THIS CASE

Petitioners Carroll and Barclay sought and obtained a

broad protective order in conjunction with their Motion

for Summary Judgment ‘‘...protecting them from

infringement upon their First Amendment rights as

members of the United Methodist Church, and particularly

in their roles as Bishop and District Superintendent respec-

tively;’ and precluding Rev. Alberts’ use of church-related

18

documents and testimony in any further proceedings

against Dr. Devine. (Appendix G, pages A.83-84). In sup-

port of that Motion, Bishop Carroll and Rev. Barclay relied

on their argument that the Constitution prohibited inquiry

by civil courts into matters of church doctrine and

administration, and that further exposure of church matters

to such scrutiny in this case would interfere with their free

exercise of religion. The Motion was allowed without

written memorandum (Appendix H, page A.89, item 71),

except for the following reference in the lower Court’s

Memorandum on Status of the Parties and Causes of

Action for Report. (Appendix K, page A.103). There the

Superior Court wrote:

Although the case against defendant Devine remains

facially viable, any further discovery or testimony by

the defendants Barclay and Carroll would result in

their invocation of the privileges and immunities

heretofore discussed.

The Supreme Judicial Court held, however, that the First

Amendment was not thus properly invoked.

The clerical defendants’ rights under the Constitution

protect them from unwarranted intrusion into their

religious beliefs and practices, whether the intrusion

threatens them as defendants or merely as witnesses. What

is more, the issues of justification and causation of

damages, to which the church-related evidence would be

relevant in a claim against the clerical defendants, are

identical to the issues of justification and causation of

damages in the Plaintiff’s claim against Dr. Devine. In both

contexts, the state court would be compelled to determine

the applicability end interpretation of ecclesiastic law to

resolve the justification issue. Similarly, no matter who the

defendant, Rev. “Alberts cannot establish a causal connec-

tion between Dr. Devine’s conversation with the clergymen

19

and his involuntary retirement without asking the state

court to scrutinize the Church’s decision-making process.

The state court would have to determine what role or

weight, if any, the disclosures had in that decision as

compared with other factors which may have been brought

to the attention of those making the decision, such as the

marriage of two homosexuals conducted by Rev. Alberts

two months before his involuntary retirement (Appendix

L, page A.104), his self-avowed initiation of or

participation in ‘‘a number of projects that were controver-

sial. . . [including] getting arrested at an anti-war sit-in. . .”’

(Appendix L, page A.104, 43), fall-out from his marital

problems (see Appendix L, page A.105, 413) or any other

aspects of his own conduct, including the fact that he was

tired and worn out (see Appendix L, page A.110, lines

18-22), which led him to request a leave of absence in

January, 1973, six months before his retirement (Appendix

L, page A.110, lines 16-24) and which led Bishop Carroll

to conclude before evr talking to Dr. Devine that he ‘‘felt

Bill [Alberts] was too sick to function in the ministry?’ (Ap-

pendix L, page A.112, lines 3-13).

The decision to place Rev. Alberts in the retired relation

within the Church was made by vote of literally hundreds

of clergymen at the Annual Conference of the Southern

New England Conference of the Church. (Appendix I,

pages A.91-92). The vote followed lengthy siatements by

many individuals, including a presentation by Rev. Alberts

himself, for whom a special extension of time was approv-

ed. (Appendix I, page A.91). Nowhere in the record is it

indicated that the Petitioners repeated at the Conference

any disclosure made to them by Dr. Devine. It is utter

speculation that all or even a majority of those voting on

Rev. Alberts’ retirement had heard any reference to

disclosures by his former psychiatrist. Moreover, even if

20

the voting clergymen knew, how can the weight each of

them gave to that information or any other facts or conduct

before them, be assayed without having their innermost

thoughts, including their standards for ministers within

their church, laid bare to the triers of fact in the civil court?

The Constitution forbids precisely such an intrusion into

*‘questions of church discipline and the composition of the

church hierarchy [which] are at the core of ecclesiastical

concern?’ Serbian Eastern Orthodox Diocese v.

Milivojevich, 426 U.S. 696, 717, reh. denied, 429 U.S. 873

(1976).

Causation of damages, justification and the Petitioners’

beliefs as to their authority are the only issues to which

the church-related evidence is conceivably relevant. The

state court is precluded from adjudicating these issues. Thus

the evidence at issue is not relevant to any issue which can

properly be adjudicated. The Superior Court properly

entered the protective order and the fourth reported ques-

tion should be answered ‘‘yes?’

21

CONCLUSION

For all of the foregoing reasons, the rettion for

Certiorari should be granted.

Respectfully submitted,

Bishop Edward G. Carroll

Rev. John E. Barclay

By Their Attorneys,

PAUL R. DEVIN

DEBORAH S. GRIFFIN

RIPLEY E. HASTINGS

PEABODY & ARNOLD

ONE BEACON STREET

BOSTON, MASSACHUSETTS 02108

(617) 523-2100

Rev. John E. Barclay

By His Attorney,

FLORENCE E. FREEMAN

FREEMAN & WHITE

ONE BOSTON POST ROAD

WESTON, MASSACHUSETTS 02193

(617) 893-1510