Opposition Brief — Lightman v. Flaum

. No. 01-1280

OPHICL-UF ‘TH:

IN THE -

Supreme Court of the United States

CHANI LIGHTMAN,

Petitioner,

v,

RABBI TZVI FLAUM and RABBI DAVID WEINBERGER,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Court OF APPEALS, STATE OF NEw YORK

BRIEF IN OPPOSITION

FRANKLYN H. SNITOW

Counsel of Record

Louis L. Nock

SNiITOW KANFER HOLTZER

& Mitius, LLP

575 Lexington Avenue

New York, New York 10022

(212) 317-8500

Attorneys for Respondents

173700 cr

COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

QUESTION PRESENTED

Whether certiorari should be granted in connection with

the opinion and order of the Court of Appeals of the State of

New York, dated November 27, 2001, in an appeal entitled

Lightman v. Flaum, Queens Co. Index No. 2169/97,

see Appendix (“App.”) at Al-A20, where the Court of

Appeals of the State of New York defined the scope of said

opinion and order as deciding “whether CPLR 4505 imposes

a fiduciary duty of confidentiality upon members of the clergy

that subjects them to civil liability for the disclosure of

confidential communications.” App. at Al.

il

TABLE OF CONTENTS

Question Presented ......csntasdeeudstnaenees

Tabie ef Contents i... 2.455% fone

Tabie of Cited Auihorii@t ...kicca cos beeene sane

Statement of the Case .............. ee ee eeeees

Preliminary Sistegeet ou. ck nccdaxsavasneacenae

Statement of Faetes ... ¢..éeak ance eee

A.

D.

The Rabbis’ Submissions in the Related New

York Matrimonial Proceeding ......... _

The Underlying New York State Action

Against the Respondents ................

The Intermediate New York Appellate

Dispoentiee ....kisncakanehuaeeeeneeees

The Opinion and Order of the New York State

Court of AQQOOIE ...css.cxndalnanes eeuess

Reasons for Denying the Writ ...............46.

The Opinion And Order Of The Court Of

Appeals Of The State Of New York Does

Not Bring Into Relevance Any Of The

Well-Settled Criteria For The Exercise Of

Jurisdiction By This Court ..............

Conclusion ......... hk s eee eee

aon

ul

TABLE OF CITED AUTHORITIES

Cases:

Anker vy. Brodnitz, 98 Misc.2d 148, 413 N.Y.S.2d 582

(Sup. Ct. Queens Co.), aff'd, 73 A.D. 2d 589, 422

N.Y.S. 2d 887 (2d Dep’t 1979), appeal dismissed,

51 N.Y. 2d 743, 432 N.Y.S. 2d 364, 411 N.E. 2d

a SEER te A aS a

Doe v. Roe, 190 A.D.2d 463, 599 N.Y.S.2d 350 (4th

Dep’t), appeal dismissed, 82 N.Y. 2d 846, 606

N.Y.S. 2d 597, 627 N.E. 2d 519 (1993) ........

Henry v. State of Mississippi, 379 U.S. 443, 85

S. Ct. 564, 13 L. Ed. 2d 408, reh'g denied, 380

U.S. 926, 85 S. Ct. 878, 13 L. Ed. 2d 813 (1965)

oe e.eae en See eee 828 O42 O62 ee 6 eo Oe Cee e462 66s 6 6 8

Krouner v. Koplovitz, 175 A.D.2d 531, 572 N.Y.S.2d

oer

MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d

a Beer ee ear er

Madden v. Creative Servs., Inc., 84 N.Y. 2d 745, 622

N.Y.S. 2d 478, 646 N.E. 2d 780 (1995) ........

Oringer v. Rotkin, 162 A.D.2d 113, 556 N.Y.S.2d 67

i ces disuse a0 wa kee has ia eee

Tighe vy. Ginsberg, 146 A.D.2d 268, 540 N.Y.S.2d

ee eee eer eee

Page

iv

Cited Authorities

Page

Statute:

y RAR Fat 2b.) ee er ere eee ee pre ere 1,9, 10

Rule:

United States Supreme Court Rule 10 ......... 1, 10, 11

Other Authorities:

New York Judiciary Law, Appendix

CR COND sd chin vesbdnwnnewswea ees 14

New York Practice Law and Rules § 4505........ passim

l

STATEMENT OF THE CASE

Preliminary Statement

The United States Supreme Court does not have jurisdiction

over an opinion and order of the New York State Court of

Appeals which found that a New York State statute, Section

4505 of the New York Civil Practice Law and Rules, was not

intended by the New York State Legislature to be anything more

than an evidentiary rule and, thus, did not give rise to a private

cause of action. Petitioner has failed to satisfy any of the criteria

warranting a grant of the petition for a writ of certiorari under

either 28 U.S.C. § 1257 or Rule 10 of this Court’s Rules of

Practice.

STATEMENT OF FACTS

A. The Rabbis’ Submissions in the Related New York

Matrimonial Proceeding

The petitioner had commenced a matrimonial proceeding

in the Supreme Court of the State of New York, County of

Queens, on or about February 2, 1996. App. at Al-A2, A64.

Simultaneously, petitioner filed a pendente lite motion for

temporary custody of. the Lightmans’ four minor children

and other relief. Jd. In conjunction with that application,

Dr. Lightman’s former matrimonial counsel, Stephen Hans, Esq.,

secured affirmations from Rabbis Flaum and Weinberger which

raised serious questions with respect to petitioner’s fitness as a

mother.' See id. at A63-A66, A94. Rabbi Flaum, who is affiliated

1. Neither Snitow Kanfer Holtzer & Millus, LLP, formerly known

as Snitow & Cunningham, LLP, nor its predecessor, Snitow & Pauley

(collectively, the “Snitow Firm”), represented Dr. Lightman at that time.

As such, the Snitow Firm was neither involved in the defense of

petitioner’s pendente lite motion nor the procurement of affirmations

(Cont'd)

2

with the Congregation Kneseth Israel in Far Rockaway,

New York and also serves as the Chairman of the Vaad

Harabonim, the Rabbinical Council of Far Rockaway and

Lawrence, New York, and Co-Chairman of the Vaad Harabonim

of Queens, and Rabbi Weinberger, who is affiliated with Temple

Shaaray Tefila in Lawrence, believed and concluded that they

were compelled by Jewish Law to disclose petitioner’s

statements to prevent Dr. Lightman from violating Jewish Law

and, within the context of a sealed matrimonial proceeding, to

protect the couple’s minor children. App. at Al-A5, A63-A64.

The affirmations of Rabbis Flaum and Weinberger stated

that during their separate encounters with petitioner, she had

informed each of them that she was no longer adhering to the

religious purification laws dictated by the Orthodox tradition

of the Jewish Faith. See App. A2-A6, A64-A66. Rabbi Flaum’s

affirmation also asserts that petitioner informed him that “she

was seeing a man in a social setting and admitted “I am doing

the wrong things.’ ” App. at A65.

Petitioner’s statements, as conveyed in the rabbis’

affirmations, indisputably related to her fitness as a mother;

(Cont'd)

from Rabbis Flaum and Weinberger. Nor did the Snitow Firm represent

Rabbis Flaum and Weinberger during the period in which their

affirmations were secured by Dr. Lightman’s former matrimonial

counsel. The Snitow Firm was retained by respondents following the

commencement of the matrimonial action in May 1997.

2. Rabbi Weinberger’s affirmation also expressed the opinion that

petitioner was no longer inclined to “adhere to Jewish law despite the

fact that she . . . [was] an Orthodox Jew and her children . . . [were]

being raised Orthodox as well . . . [and that] she has engaged in bizarre

behavior.” App. at A 66. This statement served as the basis for petitioner’s

defamation cause of action against Rabbi Weinberger. Jd. That cause of

action was dismissed by the New York State court of original instance

before which the case was pending. /d. at A93-A95.

—_—-

3

specifically, her capacity to raise the children in the Orthodox

Jewish tradition. Indeed, as the New York State court of original

instance opined in dismissing petitioner’s defamation claim

against Rabbi Weinberger, “[c]learly, the statements [related in

the rabbis’ affirmations] were pertinent to the [matrimonial]

litigation in that they were intended to reflect upon plaintiff's

fitness to be a good mother.” App. at A94. Consistent with said

court’s opinion with respect to the relevance of the rabbis’

affirmations to the child custody proceedings, the rabbis believed

that, as a matter of Jewish Law, they were compelled to disclose

petitioner’s statements within the confines of the sealed

matrimonial proceeding to protect the interests of the couple’s

children. App. at A68-A69. The rabbis also believed that they

were required, as a matter of Jewish Law, to disclose petitioner’s

statements to her husband to prevent him from engaging in

future sexual relations with his wife which, as a matter of

Jewish Law, is prohibited unless the wife has attended the

“mikvah” (ritual bath) and engaged in a monthly purification

ritual. App. at AS, A65-A69.

B. The Underlying New York State Action Against the

Respondents’

In the underlying action commenced by petitioner against

the respondents, petitioner claimed that her communications to

respondents were confidential and that respondents violated

Section 4505 of the New York Practice Law and Rules

(the “CPLR”) and intentionally inflicted severe emotional

distress upon her when they made the disclosures set forth in

3. Lightman v. Flaum, reported at 179 Misc. 2d 1007, 687 N.Y.S.

2d 562 (Sup. Ct. Queens Co. 1999) and reproduced in the Appendix at

A61-A96.

4

their affirmations. App. at A3.‘ Petitioner also asserted a

defamation claim against Rabbi Weinberger based upon certain

statements of opinion contained in his affirmation. App. at A3,

A93-A95.

Respondents moved to dismiss the complaint. App. at A3.

After converting, sua sponte, respondents’ motion to dismiss

into a summary judgment motion, see App. at A23-A24, A30,

A61, the New York Supreme Court, Queens County, (a) entered

partial summary judgment against Rabbi Weinberger on

respondent’s CPLR § 4505 claim; (b) entered summary

judgment dismissing petitioner’s defamation claim against

Rabbi Weinberger; and (c) denied summary judgment on

petitioner’s intentional infliction of severe emotional distress

claims. App. at A61-A96. In addition, said court scheduled a

hearing to resolve a factual question with respect to whether a

third party’s presence during petitioner’s encounter with Rabbi

Flaum may have resulted in the waiver of any clergy-penitent

privilege she may have had. App. at .461-A62, A95-A96.

By Decision and Order dated March 4, 1999, see App. at

A61-A96, the New York Supreme Court, Queens County,

disposed of respondents’ motion to dismiss the complaint as

follows. With respect to petitioner’s CPLR § 4505 claims,

said court, while conceding that a “cause of action does

not automatically exist for breach of an evidentiary rule,”

App. at A70, held that petitioner had stated a cognizable claim

4. CPLR § 4505 provides as follows:

§ 4505. Confidential communication to clergy privileged.

Unless the person confessing or confiding waives the

privilege, a clergyman, or other minister of any religion or

duly accredited Christian Science practitioner, shall not be

allowed to disclose a confession or confidence made to

him in his professional character as spiritual advisor.

5

based upon a breach of the “fiduciary duty of confidentiality”

purportedly implicated by the CPLR § 4505 clergy-penitent

privilege. /d. Significantly, the New York court, at the very outset

of its legal discussion, did not utter one word about the United

States Constitution or other federal law. Rather, it focused solely

on what it perceived to be a common law cause of action finding

its genesis in a state law evidentiary privilege. The New York

court stated that “our courts have repeatedly recognized that

violation of certain privileges does give rise to a common

law cause of action for breach of the fiduciary duty of

confidentiality.” App. at A70. That court thereafter granted

summary judgment in petitioner’s favor against Rabbis Flaum

and Weinberger on her CPLR § 4505 claims subject to a

determination at trial as to (a) whether respondent had been

seeking spiritual advice and counseling when she met with

respondents; and (b) whether the presence of third parties at

petitioner’s separate meetings with Rabbis Flaum and

Weinberger effected a waiver of the privilege.’ App. at A61-

A62, A95-A96. With respect to petitioner’s intentional infliction

of severe emotional distress claims, the New York Supreme

Court, Queens County, denied respondents’ motion to dismiss

those claims. App. at A90-A93.

C. The Intermediate New York Appellate Disposition®

By Decision and Order dated December 18, 2000, the

Appellate Division, Second Department reversed the Queens

County State Supreme Court’s determination and granted the

5. The affirmations indicate that petitioner’s mother was present

during her encounter with Rabbi Flaum and that a friend, Yael Hirsh,

was present during her meeting with Rabbi Weinberger. App. at A68-

A69.

6. Lightman v. Flaum, reported at 278 A.D.2d 373, 717 N.Y.S.2d

617 (2d Dep’t 2000) and reproduced in the Appendix at A21-A60.

6

respondents’ converted motion for summary judgment

dismissing the first, second, third and fourth causes of action

of the Complaint. See App. at A21-A25. The two dissenting

justices, Honorable Sondra Miller and Honorable William D.

Friedmann, issued a memorandum of their dissent which

sets forth their analysis of the substantive merits of the

parties’ underlying positions and rendering opinions on

substantive issues which include whether CPLR § 4505 —

a rule of evidence — can form the basis of a cause of action and

whether a cause of action for breach of fiduciary duty can be

stated against religious clergymen. See App. at A25-A60.

The dissent commenced its analysis by calling all other

evidentiary privileges “analogous” to the clergy-penitent

privilege, App. at A29, and then proceeded from that point to

conclude that the opinions of the New York State court of

original instance regarding the rabbis’ religion-based

communications should be upheld. See id. at A30-A60.

D. The Opinion and Order of the New York State Court of

Appeals’

Petitioner appealed the foregoing determination to New

York’s court of last resort — the Court of Appeals of the State

of New York. See App. at Al-A20. The New York Court of

Appeals disposed of the appeal in its Opinion and Order, dated

November 27, 2001, affirming the majority opinion order of

the New York Supreme Court, Appellate Division. See App. at

A1-A20. The New York Court of Appeals, in clear and

unequivocal language, characterized the question before it in

strictly state law terms, as follows:

7. Lightman v. Flaum, reported at 97 N.Y.2d 128, 736 N.Y.S.2d

300, 761 N.E.2d 1027 (2001) and reproduced in the Appendix at

A1-A20.

7

In this appeal, we must decide whether CPLR

4505 imposes a fiduciary duty of confidentiality

upon members of the clergy that subjects them to

civil liability for the disclosure of confidential

communications. We hold that it does not.

App. at Al.

After a recitation of the facts of the case, see App. at

A1-A7, the New York State Court of Appeals commenced an

analysis of Article 45 of the New York Civil Practice Law and

Rules which codify the various evidentiary privileges applicable

in civil litigation in the state. See App. at A8. See also id. at

A12-A15. The Court of Appeals then turned its focus to the

particular privilege in issue, CPLR 4505, codifying the clergy-

penitent privilege. See App. at A9.

A proper reading of the length and breadth of the Court of

Appeals opinion confirms that the entire thrust of it is completely

consistent with its opening sentence; to wit, that it is engaged

in a state court analysis of state law and the scope and possible

penumbra of causes of action allegedly emanating from that

state law. See App. at Al. In the course of its analysis of the

impact of the clergy-penitent privilege on the state of substantive

tort law in the State of New York, the New York State Court of

Appeals examined sister privileges of the clergy-penitent

privilege, such as the attorney-client privilege and the physician-

patient privilege, and concluded that “although the statutory

privileges may in some instances overlap with the applicable

fiduciary duties of confidentiality which have been defined

elsewhere in the law, those evidentiary rules are not the sources

of the underlying duties, and article 45 does not establish the

parameters of those fiduciary relationships.” App. at Al5.

Channeling its continuing analysis to CPLR Section 4505,

the Court of Appeals noted that:

8

[C]lerics are free to engage in religious activities

without the State’s permission, they are not subject

to State-dictated educational prerequisites and,

significantly, no comprehensive scheme regulates the

clergy-congregant spiritual counseling relationship.

This explains plaintiff's inability to identify a source

of defendants’ alleged duty of confidentiality

independent of CPLR 4505.

App. at A16-A17.

The New York State Court of Appeals concluded its

quintessentially state law analysis thus:

Guided by these well-settled principles and in

the absence of a statute, regulation or other source

delineating the scope and nature of the alleged

fiduciary duty, we view the CPLR 4505 privilege in

the manner intended by the Legislature — as a rule

of evidence and not as the basis of a private cause of

action. Although plaintiff understandably resents the

disclosure of intimate information she claims she

revealed to defendants in their role as spiritual

counselors, we hold that, as a matter of law

CPLR 4505 — directed at the admissibility of

evidence —does not give rise to a cause of action

for fiduciary duty involving the disclosure of oral

communications between a congregant and a cleric.

App. at A19 (emphasis added).

Nothing could be plainer. The Court of Appeals of the State

of New York was opining on the scope and import of Section

4505 of the New York Civil Practice Law and Rules as “intended

by the Legislature” of the State of New York. App. at Al9.

Consequently, as will be discussed further herein, this state law

9

decision cannot form a proper predicate for the exercise of

jurisdiction by this Court pursuant to the United States Code

and the Rules of Practice of this Court. A writ of certiorari may

only be granted by this Court where the state court has called

into question a federal law or a state law as violative of the

federal constitution or where the state court has decided an

important federal question, and even then, only under certain

circumstances. Because none ofthese criteria exist in this case

the instant petition for a writ of certiorari should be denied,

as will be discussed.

REASONS FOR DENYING THE WRIT

THE OPINION AND ORDER OF THE COURT OF

APPEALS OF THE STATE OF NEW YORK DOES NOT

BRING INTO RELEVANCE ANY OF THE WELL-

SETTLED CRITERIA FOR THE EXERCISE OF

JURISDICTION BY THIS COURT

Section 1257(a) of Title 28 of the United States Code

provides as follows:

§ 1257. State courts; certiorari

(a) Final judgments or decrees rendered by the

highest court of a State in which a decision could be

had, may be reviewed by the Supreme Court by writ

of certiorari where the validity of a treaty or statute

of the United States is drawn in question or where

the validity of a statute of any State is drawn in

question on the ground of its being repugnant to the

Constitution, treaties, or laws of the United States,

or where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution

or the treaties or statutes of, or any commission held

or authority exercised under, the United States.

28 U.S.C. § 1257(a).

ee

10

Rule 10 of the Rules of Practice of the Supreme Court of

the United States provides, in pertinent part, as follows:

Rule 10. Considerations Governing Review on

Certiorari

Review on a writ of certiorari is not a matter of

right, but of judicial discretion. A petition for a wnt

of certiorari will be granted only for compelling

reasons. The following, although neither controlling

nor fully measuring the Court’s discretion, indicate

the character of the reasons the Court considers:

* * *

(b) a state court of last resort has decided an

important federal question in a way that conflicts

with the decision of another state court of last resort

or of a United States court of appeals;

(c) astatecourt or a United States court of appeals

has decided an important ques*ion of federal law

that has not been, but should be, settled by this Court,

or has decided an important federal question in a

way that conflicts with relevant decisions of this

Court.

Of course, the New York litigation involving the extent of

procedural rule 4505 of the CPLR and whether it gives rise to a

substantive tort claim has nothing at all to do with any of the

matters identified in Section 1257(a) of Title 28 of the United

States Code. No federal treaty or statute is brought into question,

nor is CPLR Section 4505 challenged as being repugnant to

federal law. As will be further demonstrated, none of the

criteria identified in Rule 10 of this Court’s Rules of Practice

are satisfied either.

NN EEN OO

1]

Both Subdivisions (b) and (c) of Rule 10 begin with the

same prerequisite; to wit, that the state court has decided

“an important federal question” (Subdivision (b)) or, otherwise

stated, “an important question of federal law” (Subdivision (c)).

It is simply inconceivable for the petitioner to credibly maintain

that the New York State Court of Appeals rendered any such

decision in the Lightman v. Flaum litigation. As is clearly

discernible from any plain reading of the Court of Appeals

opinion and order, and as highlighted hereinabove, the Court of

Appeals simply held, as it declared at the outset of its decision

and reiterated therein, that the evidentiary privilege codified at

Section 4505 of the New York Civil Practice Law and Rules is

purely procedural in nature and scope and does not give rise to

a private cause of action under the substantive law of torts in

. the State of New York. Again, as the Court of Appeals announced

from the very beginning, “[i]n this appeal, we must decide

whether CPLR 4505 imposes a fiduciary duty of confidentiality

upon members of the clergy that subjects them to civil

liability for the disclosure of confidential communications.

We hold that it does not.” App. at Al. See also id. at A19

(“we view the CPLR 4505 privilege in the manner intended

by the Legislature — as a rule of evidence and not as the

basis of a private cause of action.”). Nothing contained in

the Court of Appeals opinion and order can reasonably be

construed as constituting a decision on “an important federal

question” or on “an important question of federal law.”

S. Ct. Rule 10(b), (c).

Petitioner’s counsel unwittingly acknowledges that this is

a uniquely state law matter involving no important federal

question. After citing the Court to the various other state statutes

codifying the common law clergy-penitent privilege, see Petition

for Writ of Certiorari (undated) (the “Petition”’) at 11-12, counsel

openly acknowledges that all the provisions of Article 45 of the

12

New York Civil Practice Law and Rules “codify evidentiary

rules that‘restrict the admissibility of information that

is communicated in certain confidential communications.”

Petition at 13. That is precisely the point, as the New York

Court of Appeals expressly held. See App. at Al9 (“we view

the CPLR 4505 privilege in the manner intended by the

Legislature — as a rule of evidence and not as the basis of a

private cause of action.”). That holding — which is essentially

a New York appellate declaration of the jural limits of a New

York statute — is entirely distinct of any possible federal

question. This case involves, exclusively, the following state

law question: Does the procedural rule of CPLR Section 4505

give rise to substantive rights in tort under New York law?

The New York Court of Appeals held that it did not.

A plain review of the New York Court of Appeals opinion

and order reveals that its analysis is based overwhelmingly on

the principle that the evidentiary privileges applicable to various

professionals in the State of New York, as codified in Article 45

of New York’s CPLR, do not furnish the predicate for whatever

tort of breach of fiduciary duty may exist under New York

substantive law vis-a-vis those professionals resulting from their

disclosure of confidences conveyed to them by those reposing

trust. The linchpin of this realization is set forth clearly in the

following statement by the New York Court of Appeals:

“Thus, although the statutory privileges may in some instances

overlap with the applicable fiduciary duties of confidentiality

which have been defined elsewhere in the law, those evidentiary

rules are not the sources of the underlying duties, and article 45

does not establish the parameters of those fiduciary

relationships.” App. at A15 (emphasis added).

The foregoing observation by the New York Court of

Appeals is grounded on the well settled substantive principles

developed by the courts of that state. The courts of New York

13

have imposed liability upon professionals by finding a breach

of fiduciary duty not to disclose confidences, completely

irrespective of any evidentiary privilege that may also happen

to attach to those professionals. See Doe v. Roe, 190 A.D.2d

463, 599 N.Y.S.2d 350 (4th Dep’t) (physician-patient), appeal

dismissed, 82 N.Y.2d 846, 606 N.Y.S.2d 597, 627 N.E.2d 519

(1993); Krouner v. Koplovitz, 175 A.D.2d 531, 572 N.Y.S.2d

959 (3d Dep’t 1991) (attorney-client); Oringer v. Rotkin,

162 A.D.2d 113, 114, 556 N.Y.S.2d 67, 68 (ist Dep’t 1990)

(psychologist-patient); Tighe v. Ginsberg, 146 A.D.2d 268,

540 N.Y.S.2d 99 (4th Dep’t 1989) (physician-patient);

MacDonald v. Clinger, 84 A.D.2d 482, 446 N.Y.S.2d 801

(4th Dep’t 1982) (psychiatrist-patient); Anker v. Brodnitz,

98 Misc.2d 148, 413 N.Y.S.2d 582 (Sup. Ct. Queens Co.)

(physician-patient), aff'd, 73 A.D.2d 589, 422 N.Y.S.2d 887

(2d Dep’t 1979), appeal dismissed, 51 N.Y.2d 743, 432 N.Y.S.2d

364, 411 N.E.2d 783 (1980). Those New York courts did not

predicate liability for the disclosures involved in these cases

upon a violation of the statutory evidentiary privileges, including

the clergy-penitent privilege.

Indeed, a closer look at the codified evidentiary privileges

enacted with respect to secular professionals reveals that

| they are derivations of the internal value systems which those

secular professionals have developed, articulated, and accepted

upon themselves as professional norms. A prime example of

this reality is found at the outset of the Lawyers’ Code of

Professional Responsibility codified in the New York Judiciary

Law. As stated therein,

The Code of Professional Responsibility, as

promulgated by the American Bar Association in

August, 1969, was adopted by the New York State

Bar Association as its own code of ethics, effective

SS a Aa

14

January 1, 1970, with certain amendments which

have been incorporated into the Code as set out

herein.

N.Y. Judiciary Law, Appendix at 350 (McKinney 1992) (italics

in original). As the New York Court of Appeals stated in Madden

v. Creative Servs., Inc., 84 N.Y.2d 745, 622 N.Y.S.2d 478, 646

N.E.2d 780 (1995),

At common law, communications between

attorney and client were held confidential as a matter

of the attorney’s code of honor. That precept 1S

embodied in the Code of Professional Responsibility

binding attorneys to keep private the confidential

communications and secrets of their clients on pain

of professional discipline, including loss of their

license to practice law.

622 N.Y.S.2d at 481 (citations omitted). While the legal

profession has accepted upon itself a norm of secrecy vis-a-vis

the client community it serves, no sufficient evidence was ever

submitted by the petitioner to the New York courts that the

rabbinical clergy have developed and embraced a similar

value vis-a-vis the denominational communsty st serves. As the

New York Court of Appeals observed in its opinion and order,

In contrast, clerics are free to engage in religious

activities without the State’s permission, they

are not subject to State-dictated educational

prerequisites and, significantly, no comprehensive

statutory scheme regulates the clergy-congregant

spiritual counseling relationship. This explains

plaintiff's inability to identify a source of defendants’

alleged duty of confidentiality independent of CPLR

4505.

App. at Al16-A17 (emphasis added).

15

Consequently, the conclusion of the New York Court of

Appeals was firmly premised upon independent and adequate

state grounds; to wit, the total absence of any substantive tort

liability for disclosure of congregant confidences by rabbinic

clergymen under New York law. “This explains plaintiff’s

inability to identify a source of defendants’ alleged duty of

confidentiality independent of CPLR 4505.” App. at A16-A17.

As this Court has held, “this Court will decline to review state

court judgments which rest on independent and adequate state

grounds. .. .” Henry v. State of Mississippi, 379 U.S. 443, 446,

85 S. Ct. 564, 567, 13 L. Ed. 2d 408, reh’g denied, 380 U.S.

926, 85 S. Ct. 878, 13 L. Ed. 2d 813 (1965).

Petitioner’s counsel turns somersaults in his half-hearted

attempt to color this uniquely state law matter as one involving

an important federal question. Peppered throughout his

submission are self tailored references to “the canons

of Catholicism,” Petition at 10, “Jewish law,” id. at 11, and

“First Amendment jurisprudence.” /d. at 17. Upon reflection,

however, the New York Court of Appeals based its decision on

straightforward state law analysis of the breadth and scope of

the evidentiary dictates of Article 45 of the New York Civil

Practice Law and Rules, as observed hereinabove. Insofar as

the New York Court of Appeals touched upon possible

constitutional implications at the very end of its discussion, see

App. at A17-A19, its exercise in doing so merely involved the

incidental recognition of indisputable foundations of our

constitution, such as the undeniable fact that “the prospect of

conducting a trial to determine whether a cleric’s disclosure is

in accord with religious tenets has troubling constitutional

implications.” App. at A17. See also id. (“To permit a party to

introduce evidence or offer experts to dispute an interpretation

or application of religious requirements would place fact-finders

in the inappropriate role of deciding whether religious law has

been violated.”’). As this Court has held, however,

16

It is, of course, a familiar principle that this

Court will decline to review state court judgments

which rest on independent and adequate state

grounds, even where these judgments also decided

federal questions. . . . [W]e have no power to revise

judgments on questions of state law. Thus, the

adequate nonfederal ground doctrine is necessary to

avoid advisory opinions.

Henry v. State of Mississippi, 379 U.S. 443, 446-47, 85 S. Ct.

564, 567, 13 L. Ed. 2d 408, reh’g denied, 380 U.S. 926,

85 S. Ct. 878, 13 L. Ed. 2d 813 (1965).

As demonstrated, the New York Court of Appeals played

an exclusively state court role in defining the scope ofa

state law — Section 4505 of the New York Practice Law and

Rules. As that court explicitly framed its purpose at the very

inception of its opinion, “fijn this appeal, we must decide

whether CPLR 4505 imposes a fiduciary duty of confidentiality

upon members of the clergy that subjects them to civil liability

for the disclosure of confidential communications. We hold that

it does not.” App. at Al. As none of the criteria for certiorari

exist in such a case as this, it is respectfully submitted that no

basis for the exercise of Title 28 jurisdiction may be found upon

which to premise the grant of a writ. The instant petition for a

writ of certiorari should, therefore, be denied.

17

CONCLUSION

For all these reasons, it is respectfully requested that the

Court deny the Petition for a Writ of Certiorari in all respects.

Respectfully submitted,

FRANKLYN H. SNiTOW

Counsel of Record

Louis L. Nock

SniTow KANFER HOLTZER

& Mitius, LLP

575 Lexington Avenue

New York, New York 10022

~ (212) 317-8500

Attorneys for Respondents