Reply Brief — Bear Valley Church of Christ v. DeBose

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: 5) MAY ' 1997

No. 96-1605 CLERK

In The

Supreme Court of the United States

October Term, 1996

.

BEAR VALLEY CHURCH OF CHRIST,

a Colorado non-profit corporation,

Petitioner,

Vv.

DENISE DEBOSE, and J.D.B., a minor child,

by and through his parent and next friend,

Denise DeBose,

and

HOMER WOLFE,

Respondents.

+

Petition For A Writ Of Certiorari

To The Supreme Court Of Colorado

+

PETITIONER’S REPLY BRIEF IN SUPPORT OF

A WRIT OF CERTIORARI

¢

Nei Quic.ey* THE RUTHERFORD INSTITUTE

QuicLey & Ritter JOHN W. WHITEHEAD

2696 South Colorado Blvd., Brap W. Dacus

Suite 595 P.O. Box 7482

Denver, Colorado 80222 Charlottesville, VA

(303) 692-0900 22906-7482

“Counsel of Record eons Yee SONS

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

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

RESPONDENTS’ STATEMENT OF THE CASE....... l

REASONS FOR GRANTING THE WRIT............. 6

I. This case cries out for certiorari review because the

Colorado Supreme Court opinion is not only incon-

sistent with this Court’s prior pronouncements, but a

multitude of other jurisdictions who have considered

this very issue. Further, this issue is being litigated

with ever-increasing frequency in state and federal

a genni tN EOE LE OPE EER Pee Or Pan iat 6

A. The Colorado Supreme Court’s opinion in this

case invades religious beliefs and practices, not

Re GS os aks Dah ba ee 8

II. Contrary to the Colorado Supreme Court and the

Respondents in this case, the Colorado Court of

Appeals found the Respondents’ expert witnesses

oi epee ere ee 9

CoP ca io 18 Ok endo sued 4d bbc cei eee 10

TABLE OF AUTHORITIES

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

Moses v. Diocese of Colorado, 863 P.2d 310 (Colo.

1993), cert. den., ___~ US. 114 S. Ct. 2153

—

SPE Cnc ccususe 4 a0¥ 00 ene eke Eee ee wens

Roman Catholic Bishop v. Superior Court, 50 Cal.

Rptr. 2d 399 (Cal. App. 4th Dist. 1996)..........

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

Le ee ren ve ee

Swanson v. Roman Catholic Bishop of Portland, et al.,

___ A.2d ___ (Maine 1997) 1997 W.L.-19707.....

Van Osdol v. Vogt, 908 P.2d 1122 (Colo. 1996) .....

“eee

l

RESPONDENTS’ STATEMENT OF THE CASE

Respondents’ allegation in paragraph one “. . . antecedent

knowledge of Bear Valley that Wolfe had sexually approached

other vulnerable children,” repeated on page 10 is specifically

denied by the Bear Valley Church of Christ, as the only

“antecedent knowledge” held by the church up and through the

time of the discharge of Homer Wolfe as a minister at the

church was the written concern of Mr. and Mrs. Wygal, which

does not support the position that “Wolfe had sexually

approached other vulnerable children,” See Petition, Appendix

D, pages 42 through 43.

Respondents’ Brief, beginning at page 2, states that facts

in the Petition of the church were incorrect in four specific

areas. Each will be addressed.

First, the point in the Petition was that J.D.B. did not

recall seeing Wolfe in 1987 or 1988, not an effort to claim he

may not have seen Wolfe in those years for counseling. The

point of the Petition statement was that all J.D.B.’s statements

concerning the conduct of Wolfe in counseling with him

related therefore to events before 1987. J.D.B.’s own testimony

was “after I went — I started going to Deer Creek, I don’t, I

don’t remember seeing him much after that.” He started attend-

ing Deer Creek in 1987 pursuant to his own testimony. The

Wygals first raised their concern in June 1987.

Second, the record does not support Respondents’ state-

ment that there was more than one incident of contact claimed

by J.D.B. of his genitals by Wolfe. J.D.B. did not allege his

genitals were touched when his mother spoke to him in June

1988 about Wolfe’s counseling. J.D.B. did not claim he was

touched on the genitals in his three or four counseling sessions

with Randy Simms in June 1988. J.D.B. denied under oath in

his deposition in this case of January 3, 1992 that touching of

the genitals had occurred and he testified in his deposition his

thigh had been rubbed only once. The first mention of touching

his penis was to Dr. Kathy Morall, a psychiatrist hired by the

DeBoses for trial, who saw J.D.B. once on April 9, 1992.

However, J.D.B. never mentioned this inflammatory fact to Dr.

Frye on April 6, 1992, April 7, 1992, or April 10, 1992, when

2

seen at the request of the church. At trial, J.D.B. testified to his

counsel’s questions:

“Q. John, do you remember telling Kathy — Dr.

Morall that Homer Wolfe touched your privates?

A. Yes.

Q. Was that true?

A. Yes.

Q. Explain to the jury what you told Dr. Morall.

A. He would just rub my leg up to my side and just

touch my penis and then .. . ” (this is the complete

answer given).

V.8:114:15-22.

Dr. Kathy Morall testified to J.D.B. counsel’s questions:

“Q. What did he tell you?

A. .... But he indicated that after the second or

third visit that Mr. Wolfe had asked him to remove

his shirt, that there had been some back rubbing, that

he had asked him to sit on his lap, and that, again, he :

would stroke his body, and that on at least one

occasion he massaged and stroked his thigh and also

touched his penis. He said privates.” (emphasis sup-

plied) V.8:59:5, 18-24.

J.D.B. also testified at trial, when under cross-examination

concerning his group counseling sessions instituted after Janu-

ary 3, 1992:

“Q. Do those other kids talk about some very

serious things that have happened to them?

A. Yes.

Q. And you believe that has helped you remember

more about your sessions with Homer?

A. Not really that, but it was just — I remember

some of the stuff for the trial and stuff.

Q. Who has talked to you about the visits of Homer

Wolfe?

Te PR Rm

A. Just my lawyer.

Q. Just your lawyer. How about your mother?

A. She just talked to my lawyer first, I guess.

a

3

Q. Okay. Your mother hasn’t talked to you about

the visits with Homer Wolfe?

A. After she talked to my lawyer, she —

Q. Excuse me, I didn’t hear the last part.

A. She would talk to me, I guess. I wouldn’t talk

back because you don’t —

Q. You don’t speak back to your mother?

A. No, not a whole lot.

Q. You just listen to what she has to say?

A. Yes.” V.8:132:1-22.

Dr. Frye testified on direct at trial:

“Q. In other words, your last visit with John was

the day after he had seen Kathy Morall?

A. Yes.

Q. And at that time he revealed nothing about hav-

ing — his penis having been touched?

A. That’s correct. And I believe I opened my third

session with the way I usually begin a final meeting

with someone I’m evaluating — I’m reading from my

own notes — any points — ‘Are there any points you

want to talk about?’ Again, implying we met twice;

did we leave something out that is a telling, impor-

tant matter that you wish to bring to my attention.

Again, this would be John or any person I’m evaluat-

ing. And John’s answer was, I’m upset because |

have to go to court because Homer Wolfe touched —

rubbed my back and legs. I don’t think Homer was —

really was a trained counselor to want to touch

people and so forth, which I said before. He did not

bring up a new piece of information, even in the face

of my asking him open-ended questions in that final

meeting.

And toward the end of that final session, again,

before we closed up, as I would always do, I wanted

to see if there’s anything we may have overlooked.

And my final — I asked: ‘Are there things that make

you sad?’ Again, the very open-ended question that

could bring up whatever was left that may still

4

wasn’t — hadn’t been touched. And John’s answer

was, ‘Moving to Nebraska; leaving my friends in

Denver; my grades, although I’m doing better this

year. I’m doing that because I want to do better with

my life and not be a bum.’ That’s what I was trying

to find earlier in my testimony.” V.13:174, 1-25:175,

1-6.

Third, Respondents’ allegations of known “misconduct”

against Wolfe before he was fired in 1988, is a totally unfair

characterization of facts. The Respondents’ mention of the

brief April 1986 discussion of the Elders with Wolfe involving

“medical counseling” before the Wygals’ concern over “medi-

cal counseling” does not equate to “misconduct.” “Medical

counseling” is not ipso facto improper sexually motivated

activity.

Attached to the Petition as Appendix D is the very docu-

ment given to the elders in June 1987 by Mr. and Mrs. Wygal.

It should be noted item six on Appendix D states: “6: Why the

discussion of Gary Don’s own private parts? (emphasis sup-

plied)

However, by the time of the depositions of Mr. and Mrs.

Wygal on March 5, 1992, which was the testimony read to the

jury over the defendant’s objections, it became the following:

“Q. And you indicate that had Mr. Wolfe asked to —

what did you say he asked your son?

A. He asked to see — he asked to examine my son to

see if he was properly circumcised.

Q. Your son told you that?

A. Yes.

Q. You told the Elders?

A. Pardon me. My son told my wife, and my wife

told me this.

Q. Then did you and your wife relate that to the

Elders at some point?

A. Yes.” (emphasis added) V.8:11-12:17-25, 1-3.

Note that in their original written concern in 1987 it was a

“discussion” of private parts and by the time of the deposition

in 1992, some almost five years later, it had become “exam-

ine,” and this was admitted into evidence based on double

hearsay.

5

Four, Respondents allege the Elders did not really suspend

the counseling of Wolfe. In the Petition at Appendix F is the

letter suspending Wolfe’s counsel on March 23, 1988 written

by Elder Jerry W. Taylor. Wolfe testified at the time of trial on

Plaintiffs’ counsel’s questions:

“Q. Mr. Wolfe, haven’t you said that Harry

Denewiler (Elder) told you you could keep counsel-

ing?

A. As I recall, I communicated with him after

receiving the letter that that would be unfair to some

of my clients, that they were desperately in need of

the help, that they would be badly harmed if we

discontinued suddenly without a good cause and

asked if he would ask the Elders to consider allowing

me to continue with some of my people with hard-

core problems.

Q. People with hard-core problems?

A. First time I ever thought of it in those terms.

People that were sensitive and needed some emo-

tional stability.

Q. And they agreed to do that?

A. Yes, they did.” V.9:99, 12-25:100, 1.

Respondents’ Brief also brings up the testimony allowed

over objection by trial court and approved by the appellate

court and Supreme Court of the State of Colorado of Wade

Wright. Wade Wright came forward in December 1989, one

and one-half years after Wolfe was discharged by the Elders.

Wright claimed he had counseled with Wolfe for one hour in

1981 or 1982 at age 12, following his 12 year old cousin’s

death. He alleged Wolfe had him remove his shirt and pants,

then lay down on the floor, while Wolfe massaged his arms,

back and legs. Wolfe also allegedly checked his circumcision.

Wright told no one about this counseling session for over ten

years, despite the fact his grandfather was a church Elder.

Page six of the Respondents’ Brief establishes the alleged

grounds upon which they claim a right of avoidance of the

First Amendment by alleging the case is grounded against the

church on their “decision to keep Wolfe’s methods secret from

the congregation.” However, claims made against the church

6

were actually upon theories of negligent hiring, negligent

supervision, breach of fiduciary duty and vicarious liability by

way of ratification. There was no “decision” to keep Wolfe’s

counseling methods a secret from the congregation. The Elders

discussed the Wygals’ concerns with Wolfe and spoke to adults

such as Magyar, who were counseling with Wolfe.

REASONS FOR GRANTING THE WRIT

I. This case cries out for certiorari review because the

Colorado Supreme Court opinion is not only inconsis-

tent with this Court’s prior pronouncements, but a

multitude of other jurisdictions who have considered

this very issue. Further, this issue is being litigated with

ever-increasing frequency in state and federal courts.

In the very recent decision on April 4, 1997 of the

Supreme Judicial Court of Maine, in the case of Swanson v.

The Roman Catholic Bishop of Portland, et al., _§ A.2d ___

(Maine 1997), 1997 W.L. 19707, the court found it unconstitu-

tional to bring a claim of negligent supervision against a

church when it was presented for the first time with the

question of whether courts may constitutionally impose and

enforce a duty of an employee’s supervision derived from

secular agency principles against a religious organization.! The

facts of the case are remarkably similar to those in Moses v.

Diocese of Colorado, 863 P.2d 310 (Colo. 1993), cert. den.,

__ U.S. ___, 114 S. Ct. 2153 (1994), which was discussed and

soundly rejected by the Maine Court. Just as the Respondents

in this case claim, plaintiffs in the Swanson case alleged that

the claim for negligent supervision against the church could be

resolved by the application of neutral tort principles. They

argued that inquiry into the church’s knowledge of the risk

presented by the priest and the reasonableness of the church’s

' The Superior Court of Maine had dismissed the claim against the

church for negligent selection and training of the priest, but had denied the

motion to dismiss the claim for negligent supervision.

7

supervisory acts involved nothing beyond the application of

secular legal standards to secular conduct. The Maine Court

pointed out: “... Clergy members cannot be treated in the law

as though they were common law employees,” and concluded

that

“... On the facts of this case, imposing a secular

duty of supervision on the church and enforcing that

duty through civil liability would restrict its freedom

to interact with its clergy in the matter deemed

proper by the ecclesiastical authorities and was not a

societal interest sufficient to overcome the religious

freedoms inhibited.”

In the case of Roman Catholic Bishop v. Superior Court,

50 Cal. Rptr. 2d 399 (Cal. App. 4th Dist. 1996), the California

Court on a writ of mandamus granted the church’s motion for

summary judgment on the basis (1) the child failed to establish

the church could have uncovered any facts that would have

shown an undue risk of harm the priest would commit criminal

child sexual abuse if he were employed by the church (one of

the church’s positions in the present case in response to the

alleged standard set forth in Van Osdol v. Vogt, 908 P.2d 1122

(Colo. 1996) by the Colorado Supreme Court at footnote 17.

However, in this case the Supreme Court of Colorado has

entirely failed to follow its own pronouncement.); (2) the

church could not have required the priest to review his prior

sexual behavior under his rights of privacy; and (3) the church

had no civil duty to supervise the priest’s vow of celibacy,

which is a religious duty. [This is contrary to the very basis of

the Colorado Supreme Court’s first case holding in Destafano

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

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

1169 (N. D. Texas 1995), the church was granted summary

judgment regarding a minister’s improper sexual conduct with

two women on claims of infliction of emotional distress,

breach of fiduciary duty, negligence in hiring, retention and

supervision, as well as Title VII retaliation and sexual harass-

ment claims.

8

The effect of the First Amendment religious clauses on a

church’s tort liability for out of course and scope activity of

clergy in sexual misconduct is an area of litigation which is

prolifigating across all jurisdictions, the majority of which

have taken the position of the Petitioner in this case before the

Court. This Honorable Court accepting certiorari will result in

the settling of the law across all jurisdictions and save vast

amounts of judicial time, as well as that of potential litigants

involved in the issue.

A. The Colorado Supreme Court’s opinion in this

case invades religious beliefs and practices, not

secular conduct.

The Respondents in this case base their claim against the

Bear Valley Church of Christ on the premise the religious

belief and practices involved of the church were not religious,

but were secular conduct. The conduct of the church involved

in this case was the hiring, supervision, disciplining and dis-

charge of clergy, its intermediary between man and God, and

having this intermediary between man and God conduct the

sacred communication of pastoral counseling. The mere bold-

face claim of the Respondents that these activities of the

church are not religious activities generated by a religious

belief and then labeling their second-guessing of the church

conduct as tortious conduct is extremely transparent on its

face. A church’s dealings with their canonical appointment and

subsequent acts of its intermediary between man and God and

in having this individual conduct the sacred communication of

pastoral counseling is, per se, the exercise of religion based on

sincerely held religious belief. The Respondents’ attempt to

relabel these events is a sham and subterfuge to avoid the First

Amendment and avoid the previously pronounced decision of

this Honorable Court which have been honored in the majority

of jurisdictions to consider the issue, but not in Colorado.

The Respondents’ many statements that there was no

inquiry into religious beliefs in this case ignores that the

Respondents were allowed in the trial to question the adequacy

9

of the Elders’ knowledge of Wolfe’s background when appoint-

ing him, to question the qualifications of Wolfe to conduct the

sacred communication of pastoral counseling, to claim Wolfe’s

methods of pastoral counseling was below the standard for

secular counseling, to question the right of the Elders even to

permit pastoral counseling by Wolfe, to question the right of

Wolfe to touch people in pastoral counseling, to claim a clergy

person must be supervised in conducting pastoral counseling,

to claim the Elders as mere lay persons were not, by experience

and education, qualified to supervise Wolfe in pastoral coun-

seling, to claim the Elders’ supervision of Wolfe in pastoral

counseling was a direct cause of injury of the minor, to claim

the Elders did not conduct a proper investigation of the Wygal

concerns, as the Respondents’ hindsight dictated, to claim the

Elders’ job description for Wolfe as intermediary between man

and God could be second-guessed by the Respondents, to claim

the Elders did not properly define the sacred communication of

pastoral counseling for Wolfe, to claim the Elders were

required to immediately destroy Wolfe as an effective coun-

selor in the church by informing the entire congregation of the

Wygals’ concern at the very outset of its receipt and to claim

the Elders were required upon the ultimately forced discharge

of Wolfe to air the full particulars of their dissatisfaction with

Wolfe to the entire congregation. This gambit of conduct by the

Respondents as permitted by the Colorado courts in the trial of

this case invaded and mutilated the religious beliefs and prac-

tices of the Bear Valley Church of Christ and they do not

disappear by the mere statement of the Respondents that they

did not take place.

Il. Contrary to the Colorado Supreme Court and the

Respondents in this case, the Colorado Court of

Appeals found the Respondents’ expert witnesses

invaded religious beliefs.

The Colorado Court of Appeals, as set forth at pages

26-27 of the Petition found that the expert witnesses the trial

court permitted to testify on behalf of the Respondents ques-

tioned the validity of Wolfe’s beliefs concerning the efficacy of

10

touching as grounded in religious principles. The Colorado

Court of Appeals also held the experts allowed establishment

of a “professional standard for pastoral counseling, i.e., that a

minor counselee should never be touched by any counselor”

and was tantamount to imposing improper liability for “mal-

practice” for violations of a professional standard of conduct.

CONCLUSION

This case presents to the Supreme Court of the United

States an opportunity to brightline its position concerning the

effect of the First Amendment on churches and to outline the

proper procedure for dealing with the claims against a church

concerning allegations of a clergyman’s sexual misconduct,

which will be of great benefit to the multitude of jurisdictions

which are being faced with this issue in an ever increasing

number.

Dated this Sth day of May, 1997.

Respectfully submitted,

New QuIGLEY

Quictey & Rritrer

2696 South Colorado Boulevard,

Suite 595

Denver, Colorado 80222

(303) 692-0900

THe RUTHERFORD INSTITUTE

JouHn W. WHITEHEAD

Brap W. Dacus

P.O. Box 7482

Charlottesville, VA

22906-7482

(804) 978-3888

Attorneys for Petitioner,

Bear Valley Church of Christ