Opposition Brief — Protestant Episcopal Church in the Diocese v. Mabus

Supreme Court, U.S.

FILED

No. 01-1263 BPR 1 2000

In The CLEP”

Supreme Court of the United States

¢

THE PROTESTANT EPISCOPAL CHURCH

IN THE DIOCESE OF MISSISSIPPI,

ST. JAMES CHURCH, AND JERRY MCBRIDE,

Petitioners,

JULIE MABUS,

Respondent.

.

On Petition For Writ Of Certiorari

To The Hinds County Circuit Court

Of Mississippi, First Judicial District

.

BRIEF IN OPPOSITION

*

KATHRYN N. NESTER

Counsel of Record

Nester LAw FIRM

5750 I-55 North

Jackson, Mississippi 39211

(601) 957-5695

BrYAN P. BuckLey

Attoriiey at Law

5750 I-55 North

Jackson, Mississippi 39211

(601) 957-7676

Attorneys for Respondent,

Julie Mabus

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Petitioners’ “Questions Presented” do not fairly and

. accurately state the issues that would be before this Court

should a writ of certiorari be granted.

1.

Petitioners’ first question presented asks whether

civil suits based on claims of failure to follow “ecclesiasti-

cal laws and canons,” are barred pursuant to the First

Amendment to the United States Constitution. (Petition,

page i) Even a cursory review of the Complaint that is

attached to the Petition reflects that Julie Mabus alleges

the petitioners acted negligently as defined by Missis-

sippi tort law, not ecclesiastical law. (Petition, App. 14-23)

The question, as stated, misrepresents the nature of the

civil suit and, therefore, incorrectly defines the legal issue

before this Court.

Simply because Father McBride may have been vio-

lating ecclesiastical laws and canons at the same time he

was violating Mississippi tort law does not change the

fact that Julie Mabus is seeking damages under state tort

law theories routinely applied in cases having nothing

whatever to do with religious laws or canons. The jury

will not be asked to decide whether or not McBride

violated ecclesiastical canons, only whether he violated

~Mississippi tort law. Because the causes of action as

pleaded by Julie Mabus are not based on ecclesiastical

doctrine, the first question presented should read:

ii

QUESTIONS PRESENTED - Continued

“Is a civil suit against a member of the clergy,

and the religious organization of which he is a -

member, which alleges state tort law claims,

outside the subject-matter jurisdiction of the

civil courts and barred because of the Religion

Clauses of the First Amendment?”

2.

Petitioners’ second question presented asks whether

the imposition of a “special duty” upon clergy “based

solely on religious status or affiliation” violates the Reli-

gion Clauses of the First Amendment. (Petition, page i)

Julie Mabus disputes that her Complaint requires the

imposition of any “special duties” on Father McBride. To

the contrary, Father McBride is charged with the same

duties as any other Mississippian who would be judged

under the state tort laws alleged in the Complaint. These

duties are not “based solely on religious status or affilia-

tion” but are required of any Mississippian, irrespective

of their religious affiliation. Breach of fiduciary duty,

fraudulent concealment, negligent misrepresentation,

negligent infliction of emotional distress, negligent reten-

_tion and negligent supervision are routinely alleged in

civil suits throughout the State of Mississippi and the

elements required to be proven by Julie Mabus will not

differ in this case merely because the defendant is a

member of the clergy. Likewise, the clergy malpractice

claim simply requires clergy to follow the same standards

of professionalism that are applied to doctors, lawyers

iii

QUESTIONS PRESENTED - Continued

and other counselors and the elements of the tort would

not differ among the professions.

If the Court eliminates the misleading phrase “spe-

cial duty” from the second question presented by Peti-

tioners and substitutes the proper term of “duty” and the

phrase “based solely on religious status or affiliation” is

removed, then Petitioners are merely rephrasing the issue

addressed in the first question presented; i.e., whether

clergy are subject to state tort laws. Therefore, Julie

Mabus respectfully submits only the first question of law

need be presented to this Court if Petitioners’ request for

review is granted.

iv

TABLE OF CONTENTS

QUBSTRONS PIRESENTEED oo ccc dcce vsienee veces en

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

eg eS: rr Pryet reer ere fores Tre re

pik toes 5. SUR rer penrenn Wyse mre erate

STATEMENT OF PERTINENT FACTS, COURSE OF

PROCEEDINGS, AND DISPOSITION BELOW......

REASONS FOR DENYING THE WRIT.............

I.

Il.

PETITIONERS’ FIRST REASON IN SUPPORT -

OF A WRIT OF CERTIORARI IS PREMATURE

BECAUSE IT ADDRESSES FINAL ADJUDI-

CATION, AND MISLEADING BECAUSE

MABUS IS NOT ASKING THE TRIAL COURT

TO DETERMINE WHETHER ECCLESIASTI-

CAL LAWS HAVE BEEN VIOLATED........

PETITIONERS’ SECOND REASON IN SUP-

PORT OF A WRIT OF CERTIORARI IS PRE-

MATURE BECAUSE MERELY ALLOWING

DISCOVERY INTO THE FACTS DOES NOT

PETITIONERS’ THIRD REASON IN SUP-

PORT OF A WRIT OF CERTIORARI IS PRE-

MATURE BECAUSE MISSISSIPPI’S. HIGHEST

COURT HAS NOT YET DECIDED THE

ISSUES THAT ARE IN CONFLICT ACROSS

pe BSS tf 5 eee Per pen rere

Vv

TABLE OF CONTENTS - Continued

Page

IV. PETITIONERS’ FOURTH REASON IN SUP-

PORT OF A WRIT OF CERTIORARI FAILS TO

SHOW IRREPARABLE HARM IF THE PETI-

TIONERS ARE MERELY REQUIRED TO

COMEPELES S DROAIV BRS 65s ecciscescnesessas 11

CEI SAST 05 SPE 6 ese ys C0EN EUR REEAE LIND raw 12

vi

TABLE OF AUTHORITIES

Page

Cases

Amato v. Greenquist, 679 N.E.2d 446 (Ill. App. 1997) ..... 6

Ayon v. Gourley, 47 F. Supp. .2d 1246 (D. Colo.

1998), aff'd on other grounds, 185 F.3d 873 (10th

Ne, 1908) ic cccccscsévcscsansus oesbdsosedaonteses 10, 11

Bear Valley Church of Christ v. DeBose, 928 P.2d 1315

(Colle. TSDG) .ccccccdssdcnsdcsccdscdoucscdsccadtsavs 6

Braidfoot v. William Carey College, 793 So.2d 642

(Miles. App. 2000)... ..cccccncccccccccccccccccsscccs 9

City of Boerne v. Flores, 521 U.S. 507 (1997)........... 7

C.J.C. v. Corporation of Catholic Bishop, 985 P.2d 262

(Winaha.. 1909) co.cc ic ctnwate dea dsndsecbevcdsveubwesas 5

Cox Broadcasting Corp. v. Cohen, 420 U.S. 469

(1978) oc cnvedccnnqsndovecsbace cutnnspesdaeweges lL, &% 3

Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988)....... 5

Guinn tv. The Church of Christ of Collinsville, 775

P26 766 CORE: TOG} 6c ce cccavcceccnscadectstesvcasts 5

Konkle v. Henson, 672 N.E.2d 450 (Ind. Ct. App.

1996). ccccrccisunacesadesscuhstieneckenabeseetunes 5

Lowery v. Guaranty Bank & Trust Co., 592 So.2d 79

ChEI8G. TOPE) » ciccccosccveccsecetsebeesegebees Genesee 9

Malicki v. Doe, ___ So.2d ___, 2002 WL 390021 (Fla.

MEO) « 0. 0.0.0:60,00 c0.0gasentgonetstnncaneeds acesinene® 5, 8

Mallette v. Church of God Int'l, 789 So. 2d 120 (Miss.

App. BOOT) oi. cciccvevciccccdevecdscdcvccbavcsessocnc 6

Martinez v. Primera Asemblea de Dios, Inc., 1998 WL

242412 (Tex. App. May 15, 1998)............--.eee- 5

Vii

TABLE OF AUTHORITIES - Continued

Page

Merchants and Planters Bank of Raymond v. Wil-

liamson, 691 So.2d 398 (Miss. 1997)................. 3

Mills v. Alabama, 384 U.S. 214 (1966) ................. 1

Moses v. Diocese of Colorado, 511 U.S. 1137 (1994) ..... 3

Sanders v. Casa View Baptist Church, 898 F. Supp.

1169 (N.D. Tex. 1995), aff'd, 134 F.3d 331 (5th

Cir. 1998), cert. denied sub nom. Baucum ov.

Sanders, S25 US. 066 (1996)... ....2.cccccccscccees 7,9

Schmidt v. Bishop, 779 F. Supp. 321 (S.D. 1991)........ 6

Smith v. Franklin Custodian Funds, Inc., 726 So.2d

BED CO FOOD oc cbs o Shi vbnesiecksesbised¥edsses 9

Smith v. O'Connell, 986 F. Supp. 73 (D.R.I. 1997)...... 7

Smith v. Raleigh Dist. of the N.C. Conference of the

United Methodist Church, 63 F. Supp.2d 694

eee. BOONE bch wccccacectccrtavescscacneccces 6, 7

Winkler v. Rocky Mountain Conference, 923 P.2d 152

ee PAs ROE 0.6 Se echsbe cdg pracbdescicsrcces 6

Younger v. Harris; 401 U.S. 37 (1971)...............55. 4

Be Ws Ns Seba Cae CeCe Rees vee be devees ceadese 1

Chee RRs MONG. Tiina Shs bas ca scke dius cece passim

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Julie Mabus respectfully submits this Brief in Opposi-

tion to Petition for Writ of Certiorari and urges this

Honorable Court to deny Petitioners’ request for an inter-

locutory review of the order of the Circuit Court of the

First Judicial District of Hinds County, Mississippi, deny-

ing Petitioners’ Revised Motion to Dismiss.

ry

v

JURISDICTION

Petitioners have invoked the jurisdiction of this

Court pursuant to 28 U.S.C. §1257. Julie Mabus respect-

fully submits that 28 U.S.C. §1257 does not confer juris-

diction upon this Court due to the absence of a final

judgment in this case. Petitioner asks this Court to review

a denial of a motion to dismiss, which was determined by

the Mississippi Supreme Court to be unfit for interlocu-

tory appeal. The order issued by the Circuit Judge deny-

ing Petitioners’ Revised Motion to Dismiss does not

possess sufficient characteristics of finality, as described

by this Court in Cox Broadcasting Corp. v. Cohen, 420 U.S.

469 (1975). In Cox, this Court acknowledged four catego-

ries of cases where this Court will accept a judgment as

final even when there are additional proceedings antici-

pated in the lower state courts.

In the first category are cases where the federal issue

is conclusive or the outcome of further proceedings is

preordained. Id. at 479. In Mills v. Alabama, 384 U.S. 214

(1966), for example, this Court reviewed the dismissal of

a criminal case on federal constitutional grounds because

the State’s highest court had ordered the case remanded

for trial and the defendant would have had no other

defense available and no hope of prevailing on any non-

federal grounds. A trial would have been pointless. The

only conceivably disputed issue was presently before this.

Court. In Julie Mabus’s case, Petitioners assert additional

defenses unrelated to their First Amendment claim. It is

certainly possible that the trial judge or the jury could

find in favor of Petitioners, without ever reaching the —

federal issue. All three defendants currently have sum-

mary judgment motions pending which raise non-federal

defenses.

In the second category are cases in which the federal

issue will survive and require decision regardless of the

outcome of future state-court proceedings. Cox, 420 U.S.

at 480. If the Petitioners prevail at trial, the First Amend-

ment issue will no longer require a decision by this Court.

- If the Petitioners prevail on their motions for summary

judgment that are pending before the trial judge, the First

Amendment issue will be moot.

In the third category are cases where the federal

claim has been finally decided but in which later review

of the federal issue cannot be had, whatever the ultimate

outcome of the case. Id. at 481. In the case at bar the

federal issue has not been finally decided. In fact, sum-

mary judgment motions are currently pending before the

trial court and the trial judge has already stated from the

bench that he intends to reexamine the law regarding

whether or not Father McBride had a fiduciary relation-

ship with Julie Mabus at the time he considers the sum-

mary judgment motions. (App. 1-3) Furthermore, if Julie

Mabus prevails at trial the Petitioners in this case would

have the right to appeal to the Mississippi appellate

courts, and from there to seek review in this Court.

Nothing bars Petitioners from raising the federal issues

described in their questions presented during the direct

“appeal of an unfavorable verdict.

In the fourth and final category, are cases where 1)

the federal issue has been finally decided in the state

courts, 2) the party seeking review might prevail on non-

federal grounds, 3) reversal of the state court on the

federal issue would preclude further litigation, and 4) a

refusal to review might seriously erode federal policy.

Cox, 420 U.S. at 482-83. (emphasis added) At least two of

the required four elements are not met.

First, the federal issue has not been finally decided in

the state courts. Indeed, the trial judge stated from the

bench that he would re-hear arguments about whether

Father McBride had a fiduciary relationship with Julie

Mabus at the time he considers the summary judgment

motions. (App. 1-3) The Mississippi Supreme Court

refused to review the trial judge’s order denying the

motion to dismiss on its merits prior to the conclusion of

the trial. (Petition, App. 7-8) The same issue involving the

trial judge’s denial of the motion to dismiss may be raised

with the Mississippi Supreme Court upon a direct appeal,

at which time the Mississippi Supreme Court would have

an opportunity to state Mississippi's interpretation of the

federal issue raised here.

Second, a refusal to review at this premature stage of

the proceedings will nct seriously erode federal policy. In

fact, this Court has denied certiorari in a case with identi-

cal issues of law even after a jury awarded $1,216,500.00

against an Episcopal Diocese in Colorado. Moses v. Diocese

of Colorado, 511 U.S. 1137 (1994). Surely if this Court

found no erosion of federal policy in the face of such a

verdict against a religious organization on the same theo-

ries of law, there can be no erosion of federal policy to

allow Julie Mabus to proceed with her case at least until

there has been a final decision on the merits. This Court

has emphasized its long-standing policy against interfer-

ing in ongoing state court litigation in other doctrines.

See, e.g., Younger v. Harris, 401 U.S. 37 (1971) (federal

courts may not enjoin pending state criminal court pro-

ceedings) and its progeny. Petitioners have failed to cite a

single case in support of the proposition that the Religion

Clauses of the First Amendment to the United States

Constitution provide blanket protection to clergy from all

civil discovery.

+

STATEMENT OF PERTINENT FACTS, COURSE OF

PROCEEDINGS, AND DISPOSITION BELOW

Julie Mabus does not dispute the Petitioners’ chro-

nology of the proceedings to date in the state courts.

Petitioners’ assertions that Julie Mabus intends to have a

civil court interpret the religious doctrine and canons of

the Episcopal Church as a basis for liability are absolutely

false. Petitioners rely on a statement made by Julie

Mabus’s counsel in which counsel stated that experts on

Episcopal doctrine might be called to testify before the

court. (Petition, page 6, footnote 4) Petitioners use that

statement as proof that Julie Mabus intends to probe into

their religious beliefs. (Petition, page 6) A close reading

of the statement of Julie Mabus’s counsel will reveal the

exact opposite is true.

Counsel was noting that if the church intends to call

witnesses to testify in their defense that Father McBride’s

deceitful actions were purely a religious matter, Julie

Mabus would be able to elicit rebuttal testimony that

Father McBride’s conduct was not part of the belief and

practices of the religious group. Never in any of the

numerous briefs filed by Petitioners in the state courts or in

this Court have Petitioners suggested that some doctrine of the

Episcopal faith compelled Father McBride to act as he did. The

Colorado and Florida Supreme Courts have held that the

free exercise clause is relevant only if the defendant can

show that the conduct that allegedly caused plaintiff’s

distress was in fact rooted in religious belief. Malicki v.

Doe, __ So.2d ___, 2002 WL 390021 (Fla. 2002); Destefano

v. Grabrian, 763 P.2d 275, 285-88 (Colo. 1988).1 The

1 See also Guinn v. The Church of Christ of Collinsville, 775

P.2d 766, 773 (Okl. 1989) (“because the controversy in the instant

case is concerned with the allegedly tortious nature of

religiously-motivated acts and not with their acts and not with

their orthodoxy vis-a-vis established church doctrine, the

justification for judicial abstention is nonexistent and the [First

Amendment] does not apply”); Konkle v. Henson, 672 N.E.2d 450,

455 n.6 (Ind. Ct. App. 1996) (“[R]eview only requires the court to

determine if the Church Defendants knew of Henson’s

inappropriate conduct, yet failed to protect third parties from

him. The court is simply applying secular standards to secular

eonduct which is permissible under First Amendment

standards.”); C.J.C. v. Corporation of Catholic Bishop, 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.”);

Martinez v. Primera Asemblea de Dios, Inc., 1998 WL 242412, at *3

(Tex. App. May 15, 1998) (“The Free Exercise clause has never

6

Mississippi Court of Appeals held in Mallette v. Church of

God Int'l, 789 So.2d 120 (Miss. App. 2001), that a church

may be sued for defamation where it disseminates infor-

mation about a fired minister to unprivileged third par-

ties. Where there is no ecclesiastical justification for the

church’s actions, the court stated, the First Amendment

will not apply. Id. Counsel for Mabus was correctly point-

ing out in his argument that the church and diocese will

be unable to prove that ecclesiastical justification exists

for McBride’s actions.

od

immunized clergy or churches from all causes of action alleging

tortious conduct. Religious groups may be held liable in tort for

secular acts.”) (citation omitted); Amato v. Greenquist, 679 N.E.2d

446 (Ill. App. 1997) (“Illinois courts may entertain lawsuits

alleging tortious conduct by churches and their employees, so

long as the resolution does not require the interpretation of

either religious doctrine or religious duties imposed on an

individual by a particular church.”); Schmidt v. Bishop, 779

F. Supp. 321, 327 (S.D. 1991) (“tort claims for behavior by a cleric

that does not require the examination of religious doctrine are

cognizable.”); Winkler v. Rocky Mountain Conference, 923 P.2d

152, 157 (Colo. App. 1995) (Where church did not contend that

pastor’s inappropriate touching of parishioners was based on

any religious tenet or belief, trial court properly rejected

church’s First Amendment defense); Bear Valley Church of Christ

v. DeBose, 928 P.2d 1315 (Colo. 1996) (minister gave no religious

reasons to justify his therapeutic massaging of counselees; both

minister and-church could be liable); Smith v. Raleigh Dist. of the

N.C. Conference of the United Methodist Church, 63 F. Supp.2d 694,

702 (E.D.N.C. 1999) (“While the Free Exercise clause protects

religious beliefs and a church’s management of its internal

affairs, it does not uniformly sanction all religious conduct, nor

does it protect all actions taken within the context of a religious

environment.)”.

REASONS FOR DENYING WRIT

I, PETITIONERS’ FIRST REASON IN SUPPORT OF A

WRIT OF CERTIORARI IS PREMATURE BECAUSE

IT DEALS WITH FINAL ADJUDICATION, AND

MISLEADING BECAUSE MABUS IS NOT ASKING

THE TRIAL COURT TO DETERMINE WHETHER

ECCLESIASTICAL LAWS HAVE BEEN VIOLATED

Petitioners’ first argument in support of granting the

writ is premature because it challenges civil courts’ right

to adjudicate cases that involve theological controversy.

In the case at bar, Julie Mabus is nowhere near a final

adjudication. Petitioners’ first reason actually supports

~ Mabus’s argument that review would be more appropri-

ate by this Court when and if the trial court ever returns a

final adjudication in this case.

Petitionérs misrepresent that Mabus’s claims are

grounded on alleged violations of ecclesiastical laws and

policies. Simply because Father McBride may have been

violating an ecclesiastical law at the same time he was

violating Mississippi tort law does not immunize him

from liability under Mississippi’s secular'laws. To do so

would place religious institutions in a preferred position

over secular institutions, a concept foreign to the First

Amendment. See Sanders v. Casa View Baptist Church, 134

F.3d 331, 336 (5th Cir. 1998), cert. denied sub nom. Baucum

v. Sanders, 525 U.S. 868 (1998); Malicki v. Doe, __ So.2d

___, 2002 WL 390021 (Fla. 2002); Smith v.-O’Connell, 986

F. Supp. 73, 80 (D.R.I. 1997) (citing City of Boerne v. Flores,

521 U.S. 507, 537 (1997) (Stevens, J., concurring)); Smith v.

Raleigh Dist., 63 F. Supp.2d 694, 716 n.18 (E.D.N.C. 1999).

Petitioners’ position is tantamount to saying, if the priest

commits murder, he would be shielded from state crimi-

nal law proceedings because he was simultaneously -

violating one of the Ten Commandments, which is a

religious doctrine prohibited from interpretation by the

courts.

Petitioners cite several cases holding that the civil

courts should not be allowed to resolve church property

disputes (Petition, page 10) and claim that if civil courts

cannot hear these cases, then Mabus’s case should cer- ~—

tainly not be heard. The Florida Supreme Court

addressed that precise issue in the Malicki opinion

released two weeks ago. In Malicki, the Florida Supreme

Court noted that this Court has not extended the reli-

gious autonomy principle as articulated in the property

dispute cases cited by Petitioners to any disputes beyond

strictly ecclesiastical intrachurch disputes that have been

resolved through an ecclesiastical tribunal. The Florida

Supreme Court then held that negligent hiring and super-

vision claims would not be barred by the Free Exercise

Clause, stating:

. .. the imposition of tort liability in this case

has a secular purpose and the primary effect of

imposing tort liability based on the allegations

of the complaint neither advances nor inhibits

religion. The core inquiry in determining

whether the Church Defendants are liable will

focus on whether they reasonably should have

foreseen the risk of harm to third parties. This is

a neutral principle of tort law. Therefore, based

on the allegations in the complaint, we do not

foresee “excessive” entanglement in internal

church matters or in interpretation of religious

doctrine or ecclesiastical law.

Malicki, —__ So.2d at __, 20002 W.L. 390021 *10 (Fla. 2002).

II. PETITIONERS’ SECOND REASON IN SUPPORT

OF A WRIT OF CERTIORARI IS PREMATURE

BECAUSE MERELY ALLOWING DISCOVERY

INTO THE FACTS DOES NOT IMPOSE ANY SPE-

CIAL DUTIES ON PETITIONERS

The state courts have not imposed any duties on

Petitioners. Should there be an ultimate adjudication of

liability on the issue of breach of fiduciary duty, then

Petitioners may wish to raise this argument. Now, the

only ruling of the trial judge is that discovery can com-

mence and the case will not be dismissed on the face of

its pleadings. (Petition, App. 1) The trial judge may ulti-

mately rule that Father McBride had no special relation-

ship of trust with Julie Mabus and therefore he owed her

no duty. The jury may also come to this conclusion due to

the fact that in Mississippi the question of whether or not

a fiduciary duty existed is a factual one and ordinarily

cannot be decided on a motion to dismiss.” It is Mabus’s

contention that the facts would support a jury’s determin-

ing that the relationship between Rev. McBride and Julie

Mabus was a fiduciary one. At the very least, this is a

question for the jury. See, e.g., Sanders v. Casa View Baptist

Church, 898 F. Supp. 1169, 1176 (N.D. Tex. 1995), aff'd, 134

F.3d 331 (5th Cir. 1998), cert. denied sub nom. Baucum v.

Sanders, 525 U.S. 868 (1998) (court held that question of

whether there was a fiduciary relationship between min-

ister and parishioners was a genuine issue of material fact

to be determined at trial).

2 Braidfoot v. William Carey College, 793 So.2d 642 (Miss.

App. 2000); Smith v. Franklin Custodian Funds, Inc., 726 So.2d

144, 150 (Miss. 1998); Merchants and Planters Bank of Raymond v.

Williamson, 691 So.2d 398 (Miss. 1997); Lowery v. Guaranty Bank

& Trust Co., 592 So.2d 79 (Miss. 1991). ,

ae

10

Petitioner cannot credibly argue that the duty to

respond to discovery is a “special” duty placed on the

Petitioners merely because of their religious status. All

litigants face the task of participating in discovery. Peti-

tioners are not being singled out or treated any differ-

ently than any other litigant would be treated. Petitioners _

are also able to avail themselves of all protective mea-

sures available under the Mississippi Rules of Civil Pro-

cedure should any discovery request prove unduly

burdensome or harassing in nature.

III. PETITIONERS’ THIRD REASON IN SUPPORT

OF A WRIT OF CERTIORARI IS PREMATURE

BECAUSE MISSISSIPPI’S HIGHEST COURT HAS

NOT YET DECIDED THE ISSUES THAT ARE IN

CONFLICT ACROSS THE COUNTRY

The Chief Justice of the Mississippi Supreme Court

concedes that the issues presented to this Court have not

yet been determined in Mississippi. (Petition, App. 10)

The fact that states differ in their interpretation of state

tort laws as they are applied to clergy is even more

reason why Mississippi should be allowed to forge her

own body of law on the subject before this Court steps in.

Asking this Court to rule now, before there has been an

adjudication of liability and before the Mississippi

Supreme Court has had the opportunity to consider the

issues on the merits, is putting the cart before the horse.

Interestingly, Petitioners cite lengthy verbatim quotes

from the case of Ayon v. Gourley, 47 F. Supp.2d 1246 (D.

Colo. 1998) as the best example of the reasoning of the

States that hold the First Amendment forecloses negligent

11

hiring, supervision and retention claims. When the First

Amendment issues in Ayon were appealed up to the

Tenth Circuit Court of Appeals, the appellate court

refused to consider them and instead found in favor of

the church on completely separate state law claims

involving the statute of limitations. Ayon v. Gourley, 185

F.3d 873 (10th Cir. 1999) (unpublished decision). This

history of Ayon provides a perfect example of why this

Court should refrain from granting certiorari until all the

avenues of appeal have been exhausted in Mississippi.

IV. PETITIONERS’ FOURTH REASON IN SUPPORT

OF A WRIT OF CERTIORARI FAILS TO SHOW

IRREPARABLE HARM IF THE PETITIONERS

ARE MERELY REQUIRED TO COMPLETE DIS-

COVERY.

Petitioners argue that they will face irreparable harm

if they are required to submit to the process of discovery.

Petitioners failed to cite any authority for the proposition

that the Religion Clauses protect clergy and/or religious

organizations from participating in discovery. Instead,

they rely on several cases involving freedom of speech.

(Petition, page 21)

Petitioners speculate that the mere fact they must

attend depositions and respond to written discovery will

chill their ability to practice their religion. Petitioners

make no credible argument to this Court that Julie

Mabus’s requests will have such a chilling effect. More-

over, discovery rules enable Petitioners to object to cer-

tain inquiries, at which time the trial judge may consider

12

arguments from all parties and make a full and complete

record on the issue.

Julie Mabus seeks to discover only facts regarding

what the diocese knew about Father McBride’s actions,

when they knew about them, and what steps they took to

avoid further harm after they learned of the acts. Julie

Mabus is not seeking to inquire into religious “truths”

about the Episcopal faith or religious beliefs held by the

deponents. These defendants should not be allowed to

stand above the laws that govern our society and use the

First Amendment to shield them from accepting respon-

sibility for tortious acts that harm others.

¢

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

KaTHRYN N. NESTER

Counsel of Record

Nester Law Firm

5750 I-55 North

Jackson, Mississippi 39211

(601) 957-5695

Bryan P. Buckley

Attorney at Law

5750 I-55 North

Jackson, Mississippi 39211

(601) 957-7676 |

Attorneys for Respondent,

Julie Mabus

App. 1

EXHIBIT A

IN THE CIRCUIT COURT OF THE

FIRST JUDICIAL DISTRICT OF

HINDS-COUNTY, MISSISSIPPI

JULIE MABUS ; PLAINTIFF

VERSUS NO. 251-01-023

ST. JAMES EPISCOPAL CHURCH, EPISCOPAL

DIOCESE OF MISSISSIPPI, INC., JERRY MCBRIDE

AND JOHN DOES 1-10 DEFENDANTS

*e#eeeeeneneneee eee eeeeee eee e & &

TRANSCRIPT OF THE PROCEEDINGS HAD AND

DONE IN THE MOTION T© DISMISS OF THE ABOVE

STYLED AND NUMBERED CAUSE BEFORE THE HON-

ORABLE L. BRELAND HILBURN, CIRCUIT COURT

JUDGE, ON THE 15TH DAY OF AUGUST, 2001.

e*e#eeeeeeeveee eevee ee eee ee ee & &

APPEARANCES:

Present and Representing the Plaintiff:

HONORABLE KATHRYN N. NESTER

HONORABLE BRYAN BUCKLEY

Attorneys at Law

5750 I-55 North

Jackson, Mississippi 39211

Present and Representing Defendant St. James Epis-.

copal Church:

HONORABLE DORRANCE AULTMAN

Attorney at Law

Post Office Drawer 750

Hattiesburg, Mississippi 39403

App. 2

Present and Representing Defendant Episcopal

Diocese of Mississippi, Inc.:

HONORABLE CHARLES ROSS

WISE, CARTER, CHILD & CARAWAY

Post Office Box 651

Jackson, Mississippi 39205 -

Present and Representing Defendant Jerry McBride:

HONORABLE ROBERT A. MALOUF

Attorney at Law

202 North Congre

Jackson, Mississipp!

Reported by: Fran Askew, CSR

Official Court Reporter

Post Office Box 327

Jackson, Mississippi 39205

CSR No. 1145

* * *

RULING :

[56] and a violation of that fiduciary duty by the

defendants. |

The Court recognizes that although it’s charac-

terized as a rule_of evidence, there is statutory

authority for the enforcement of a confidentiality of

priest penitent conversations, and based upon the

face of the pleadings, it’s the finding of the Court

that the motion to dismiss will be overruled.

I understand that there are summary judgment

motions which would certainly be more particular in

drawing a fine line in the evidence concerning, in

particular, the fiduciary relationship that is set forth

in the complaint.

I think at the time that those summary judgment

motions are scheduled you will need to be prepared

App. 3

to — well, I would prefer not to hear all of the

summary judgment motions at one sitting if they’re

going to-take an extensive period of time. I don’t

know how long you think your argument is going to

be and whether they are going to take different

courses from the defendants.

I’m just trying to think of whether we need any

‘ type of scheduling order.

BY MR. ROSS: Your Honor, could I

* * »