Petition for Writ of Certiorari — Archdiocese of Oklahoma City v. Ballard

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No. 00-279 sues sans

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SUPREME COURT OF THE UNITED STATES

ARCHDIOCESE OF OKLAHOMA CITY;

REVEREND CHARLES A. SALATKA;

REVEREND EUSEBIUS J. BELTRAN, and

OBLATES OF ST. FRANCIS DE SALES,

Petitioners,

DENNIS W. BALLARD and RONALD BALLARD,

individually ; and ALGERENE BALLARD,

individually; C.J., a minor, by and through his parents

and next of friends, JIMMIE BARTLETT JOHNSON, JR.

and PAMELA GAYLE JOHNSON; and

JIMMIE BARTLETT JOHNSON, JR., individually;

and PAMELA GAYLE JOHNSON, individually,

Respondents.

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ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF OKLAHOMA

PETITION FOR WRIT OF CERTIORARI

KENT FLEMING DAVID C. JOHNSTON, JR.

BRENTLY C. OLSSON DEBRA CHARLES

(Counsel of Record) CHUBBUCK, SMITH, RHODES,

HUCKABY, FLEMING, STEWART & ELDER

FRAILEY, CHAFFIN, 119 North Robinson Avenue

CORDELL, GREENWOOD Suite 820

& PERRYMAN, L.L.P. Oklahoma City, OK 73102

1215 Classen Drive (405) 236-8282

P.O. Box 60130

Oklahoma City, OK 73146

(405) 235-6648

— Counsel for Petitioners —

Washington, 0.C. ¢ THIEL PRESS © (202) 326-3286

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QUESTIONS PRESENTED

1.Whether the Establishment and Free Exercise

clauses of the First Amendment grant a religious organ-

ization immunity from civil discovery concerning the

hiring, placement and supervision of clergymen?

2. Whether the Free Exercise Clause of the First

Amendment prohibits the exercise of subject matter and

breach of fiduciary duty jurisdiction over common law

negligent hiring, retention and supervision claim against

a religious organization for the alleged tortious acts of

a clergyman?

3. Whether the exercise of subject matter jurisdiction

which will allow a jury in considering a common law

cause of action for negligent hiring, retention, supervision

and breach of fiduciary duty claim against a religious

organization to determine a “reasonable bishop standard”

violates the First Amendment prohibition of the state

establishment of religion?

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PARTIES TO THE PROCEEDING

The Petitioners are the Archdiocese of Oklahoma

City, Reverend Charles A. Salatka, Reverend Eusebius

J. Beltran, and Oblates of St. Francis de Sales. These

parties were Defendants in the District Court of Okla-

homa County, but were Petitioners in a Petition to the

Oklahoma Supreme Court for the court to assume ong-

inal jurisdiction and issue a writ of prohibition.

The Respondents and real parties in interest are Den-

nis W. Ballard, Ronald W. Ballard and Algerene Ballard

and were plaintiffs in the District Court of Oklahoma

County, Case No. CJ-99-6364-65.

The other Respondent in a minor whose identity is

-to be protected and who is identified as C.J., a minor,

who is plaintiff in the District Court of Oklahoma

County, CJ-99-6829-65.

Petitioners respectfully petition for writ of certiorari

to review the judgment of the District Court of Okla-

homa County.

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Page’

TABLE OF CONTENTS

Questions PREGGO occ ccc cee n sc eccsesesecces i

Parties To The Proceeding. .........ceeeeeeeeeeees ii

Table Of Authorities... cece ccc cree cecessnes Vv

Opinions Below. ........cccescccccccesesevecees ]

Statement of Jurisdiction ........ccccsccscceseces l

Constitutional Provisions Involved .............+45- 1

Statement OF The Case... tcc cet c cece ceceseen 2

Pe ONE code ope dG es cacdnassvaseesseceess 2

B. Proceedings Below. ........cccccccccccsccens 3

Reasons For Granting The Writ... ......... eee eee 5

I. This Court Has Jurisdiction Because Of The

Final Nature Of The District Court’s Rul-

ing That It Has Subject Matter Jurisdiction

Over The Church Petitioners. ..............24. 5

A. The Oklahoma Supreme Court’s Refusal

to Accept Original Jurisdiction and Issue

Writ of Prohibition Renders The Trial

Court’s Ruling Into a Final Judgment........ 6

B. The Assertion of Subject Matter Jurisdic-

tion And Requiring That Church Petition-

ers be Subjected To Discovery Cannot Be

Meaningfully Reviewed At a Later Point

By An Appellate Court................-55 7

C. The First Amendment Protections to

Church Petitioners Are Conclusive to

Plaintiffs’ Cause of Action................- 10

D. The Issue of the Scope of First Amend-

ment Protection Requires A Decision

II.

III.

IV.

VI.

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Concerning Jurisdiction Regardless of

the Outcome of the State Proceedings. ....

E. Refusal Of The Supreme Court To Re-

view The First Amendment Issues In

The Instant Case Would Seriously

Erode Federal Policy Even Though

The State Proceedings Are 7

PEO «dene dccneatud) saked pe oe 4

The Decision Below Conflicts With This Court’s

Teaching That The First Amendment Protects

Against The State’s Interference With A Reli-

gious Organization’s Internal Matters That Per-

tain To The Selection And Supervision Of

Rs 6 inh sek Che duane scales Land ;

The Exercise Of Subject Matter Junsdiction,

And Subjecting The Church Petitioners To

The Discovery Process And The Prospect Of

Money Damages Is Not The Least Restrictive

Means in Protecting The Interests Of The

State And Individuals For Vindication Of

The Tortious Acts Of Clergymen............

Certiorari Should Be Granted In Order To

Resolve The Conflicts Between The Various

State And Federal Courts On Whether The

First Amendment Would Allow A Cause Of

Action Against A Religious Organization For

The Alleged Torts Committed By Clergymen ...

Subjecting Religious Organizations To A

“*Reasonable Bishop”’ Standard Is Violative

Of The Establishment Clause...............

An Exercise Of Subject Jurisdiction By The

State Court Would Lead To An Unavoidable

21

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Page

Clash With The Canon Law Of The Catholic

PE sin Gh ks bees FG OR ea 26

TIO es hind di aKa a eeee ko eee 30

TABLE OF AUTHORITIES

Cases:

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

scutes Boh PEER TEE CEE eRe tn DE aD 22

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

1315 (Colo. 1996) cert. denied, 520 U.S. 1241..... 24

Belknap, Inc. v. Hale, 463 U.S. 491 ( _: Bere eeae 1]

Bowen v. Roy, 476 U.S. 693 (1986).............. 18

Bladen v. Presbyterian Church of Sallisaw, 857

Pe TO AU 6 ba hav asad oes ec ucts 15

California v. Trombetta, 467 U.S. 479 oo. | Sr 6

Cantwell v. State of Connecticut, 310 U.S. 296

CT PR Ce Pee Oe ROME ao eae 12,17

Church of the Lukumi Babalu Aye, Inc. v. City

of Hialeh, 508 U.S. 520 (1993)............... 17,18

Construction Laborers v. Curry, 371 U.S. 542

J a ee ETE TP ee Ore ern re 6, 11

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

Oe) Sere be Pee 26S Gear area 9,10, 11

Doe v. Evans, 718 So.2d 286 (Fla.App. 4 Dist.

ROME HAR eds yon uee Ss xs aoe ERE OCHS i Sax 24

Doe v. Hartford Roman Catholic Diocesan Corp.,

FO SR ERIN 4.5 eS dan tks Kan oe ches nny 24

—— =

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Cases, continued: Page

Employment Division, Department of Human

Resources of Oregon v. Smith, 494 U.S. 872

ee eee rey ere re rire nae rr ye eee i 12

First United Church v. White, 571 A.2d 790 (D.C.

ee eS re re et ee 9

Ft. Wayne Books, Inc. v. Indiana, 489 U.S. 46

ee Rew EEE ee rr et ee eye ee ee 13

Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997)... 24, 28

Gilette v. United States, 401 U.S. 437 (1971)....... 18

Gonzalez v. Roman Catholic Archbishop, 280

Ms By ROESOREE 5648460564400 14, 15

Guinn v. Church of Christ of Collinsville, 775

Fiat CS CLG Cs BOO 6 kau cake eae 16

Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992)......... 15

Kedroff v. St. Nicholas Cathedral of the Russian

Orthodox Church, 344 U.S. 94 (1952), later

opinion, Kresshik v. St. Nicholas Cathedral

of the Russtan Orthodox Church, 363 U.S.

cS SEE TE her ye ete ise wes 14,15

Kenneth R. v. Roman Catholic Diocese of

Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d

791 (1997), cert. denied, ___ U.S. ___,

POs BOR CIE a sk ease Ene hd Lhe Kea 24

Kulko v. California Superior Court, 436 U.S.

sh ick bi PERE POE Pe Ce rE re 10

Lemon v. Kurtzman, 403 U.S. 602 ‘Ao 2G Be angeememes ee? 25

L.L.M. v. Clauder, 563 N.W.2d 434 (Wis.

iid RE CE CET Pee ee ee ee Te 20, 21, 25

(vit)

Cases, continued: _Page_

McDaniel v. Paty, 435 U.S. 618 (1978)............. 17

Miami Harold Publishing Co. v. Tornillo, 418

I OR a OOS bik 00 0b 066 Eads cade wien 13

N.L.R.B. v. The Catholic Bishop of Chicago,

seins Beene sts ich ng CE EET Pe OTe 8, 9,12

N.H. v. Presbyterian Church, (U.S.A. ), 99 OK

TS EE M460 USS ARG Khe he hk 3 wh 15, 18

Nat. Socialist Party of America v. Village of

peone, $328 U.S, 45 (1977)... cece ceases 12

Nebraska Press Ass’n v. Stuart, 423 U.S. 1327

SUNEK 554405 04.6505 So du 0s Cee EE LEAR eA AGL: 7

North Dakota Pharmacy Bd. v. Snyder’s Stores,

a eg ts | a ere ee 7,9

Parks v. Kownacki, 305 Ill.App.3d 449, 711 itil

Se RE EEUU i ok ODN on 0 5-Abeipedieick cea 24

Presbyterian Church v. Hull Church, 373 U.S.

inh cap ed RE SEEEL ET CE EE et eee ere 14

Pritzlaff v. Archdiocese of Milwaukee, 194 Wis.2d

302, 533 N.W.2d 780 (1990), cert. denied, ___

U.S. __ , 116 S.Ct. 920, 133 L.Ed.2d 849

WO icy ee ee 23

Rayburn v. General Conf. of Seventh Day Adven-

tests, 772 F.2d 1164 (4th Cir. 1985).............. 9

Rush v. Savchuk, 444 U.S. 320 (1980)............. 10

Schmidt v. Bishop, 779 F.Supp. 321 (S.D. N.Y.

RE hbk Fo RRS 6G Cae eee REAw Se KAS KES 21

Serbian Orthodox Diocese v. Milivojevich, 426

Cee TEETER ov Mba tins thence ecene as bees 14,15

Shaffer v. Hettner, 433 U.S. 186 n.12 (1977)........ 10

(vitt)

Cases, continued: ) Page

Sherbert v. Verner, 374 U.S. 398 (1963)............ 16

Swanson v. Roman Catholic Bishop, 692 A.2d

binia! Wenn dh smc Heniickd Cee er ete POCO TT LORE 23

Thomas v. Review Board of Indiana Employ-

ment Security Division, 450 U.S. 707 (1981)....... 17

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871) ..... 14

Western Union Tel. Co. v. Crovo, 220 U.S. 364

SPORES a sive cea pvaueenns prerrvirrerre rT cee 6

Wisconsin v. Yoder, 406 U.S. 205 (1972)........ 17,18

World-Wide Volkswagen Corp. v. Woodson,

se diindintesce Lecsaeds Leiesecci PLATE CET TOPE T EE eee 10

Statutes:

28 U.S.C. §1257....... OP TPO Perr ere ]

Oklahoma Discovery Code, Title 12 O.S.

§ §3226, 3228, 3230, 3233, 3234 and

DEP dea heehee eUs edo oo ra AS Da ees 8,9

United States Constitution:

Pe I il ee ke passim

Fourteenth Amendment .................. 1, 2,4, 12

Other Authorities:

Clergy Sexual Misconduct, Confronting the

Difficult Constitutional & Institutional

Liability Issues, 7 St. Thomas L. Rev.

CREE EET OE COP PEN Or pe PEE Sara 25

]

Church Petitioners respectfully petition for a writ of

certiorari to review the decision of the Oklahoma County

District Court on the issue of subject matter jurisdiction.

The Oklahoma Supreme Court refused to review the

matter on July 10, 2000.

- OPINIONS BELOW

The Order of Oklahoma County District Court Judge

Niles Jackson of May 15, 2000 is found in Appendix

A, p. la. The Order of the Oklahoma Supreme Court

of July 10, 2000 denying the Church Petitioners’ Peti-

tion for that court to assume original jurisdiction and

enter a writ of prohibition is found in Appendix B, p.

3a.

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STATEMENT OF JURISDICTION

The trial court in the District Court of Oklahoma

County, Seventh Judicial District of the State of Okla-

homa, on May 15, 2000, entered an Order holding the

court could exercise subject matter jurisdiction over

the Church Petitioners. The Church Petitioners then

petitioned the Oklahoma State Supreme Court to assume

original jurisdiction over the case and enter a writ of

prohibition to bar the trial court from asserting subject

matter jurisdiction. The Oklahoma Supreme Court, on

July 10, 2000, entered an Order denying the Church

Petitioners’ Petition.

The jurisdiction of this court is invoked pursuant to

28 U.S.C. §1257. :

CONSTITUTIONAL PROVISIONS INVCLVED

This case involves the First Amendment to the United

States Constitution as made applicable to the states by

the Fourteenth Amendment.

2

The First Amendment states in pertinent part:

“Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof;”’

The Fourteenth Amendment states in pertinent part:

“‘No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty or property, without due

process of law; nor deny any person within its juris-

diction the equal protection of laws.”

STATEMENT OF THE CASE

A. The Facts.

Respondent/Plaintiff, Dennis Ballard, claims between

1992 and 1997, he was molested by a priest who pas-

tored at the Assumption Catholic Church in Duncan,

Oklahoma. Respondent/Plaintiff, C.J., a minor, claims

that he was molested on one occasion by the same priest.

They have sued the Church Petitioners in the District

Court of Oklahoma County, State of Oklahoma, alleging

vicarious liability and direct liability for intentional and

reckless infliction of emotional distress, failure to wam,

failure to report sexual abuse, breach of fiduciary duty,

and for negligent hiring, retention and supervision of the

priest. Respondents contend that the Church Petitioners

knew or should have known of the history of prior

alleged sexual misconduct of the priest in question. The

Church Petitioners deny the Respondent/Plaintiffs’

factual allegations.

The priest in question was associated with the Oblates

of St. Francis de Sales which is based out of Toledo,

3

Ohio. The Oblates is a religious order which trains and

ordains priests in the Roman Catholic Church, and coor-

dinates the placement of those priests in various capaci-

ties across the country. The Oblates assigned the priest

in question to assist the Archdiocese of Oklahoma City,

Oklahoma in pastoring Assumption Parish in Duncan,

Oklahoma. The priest in question was appointed by

Respondent, Archbishop Charles Salatka on December

27, 1990.

On May 10, 1999, the Archdiocese received informa-

tion alleging that the priest in question had molested

Respondent/Plaintiff Ballard. The Duncan Police Depart-

ment was notified by the Archdiocese on that date of the

substance of Ballard’s complaint. Criminal charges were

filed against the priest. In December of 1999, the priest

pled nolo contendere to three counts of lewd molestation.

B. Proceedings Below.

In 1999, the Respondents brought suit against the

Church Petitioners, alleging vicarious liability and direct

liability for intentional and/or reckless infliction of se-

vere emotional distress, failure to warn, failure to report

sexual abuse, breach of fiduciary duty, and for negligent

hiring, retention and supervision of the priest in question.

(See Third Amended Petition of Respondent/Plaintiff

C.J., dated January 25, 2000, Appendix D, pp. 14a-22a);

and Fourth Amended Petition of Respondent/Plaintiff

Ballard, dated January 25, 2000, Appendix C, pp. 5a-

13a.)

The Church Petitioners filed Motions to Dismiss on

grounds of lack of subject matter jurisdiction and Re-

spondents’ failure to state a claim upon which relief can

be granted. (See Motions to Dismiss of the Archdiocese,

filed in each state court case on February 18, 2000,

4

Appendix E, pp. 23a-33a; and Amended Motions to

Dismiss of Oblates, filed in each state court case on

March 23, 2000, Appendix F, pp. 34a-55a and G, pp.

56a-78a.) The essence of the Church Petitioners’ motions

was that the First Amendment, by virtue of the incor-

poration Doctrine of the Fourteenth Amendment to

the United States Constitution, prohibited the District

Court of Oklahoma County, State of Oklahoma, from

exercising subject matter jurisdiction based upon the

allegations in the lawsuit in question. (Appendix E,

pp. 23a-33a, F, pp. 34a-55a and G, pp. 56a-78a.)

Oklahoma County District Judge Niles Jackson over-

ruled the Church Petitioners’ Motions to Dismiss in a

written Order dated May 15, 2000. (Appendix A, pp.

la-2a.) Consequently, the Church Petitioners sought

protection by requesting the Supreme Court of the

State of Oklahoma to assume original jurisdiction of the

matter and issue a writ of prohibition barring the District

Court from-exercising subject matter jurisdiction. (See

Application to Assume Original Jurisdiction, Appendix

L, pp. 120a-125a, and separate Brief in Support, Appen-

dix K, pp. 104a-119a and P, pp. 164a-167a, filed by the

Archdiocese on May 22, 2000, and by the Oblates on

May 23, 2000.) (See also Applications to Assume Orig-

inal Jurisdiction, Appendix M, pp. 126a-131a and O, pp.

158a-163a, and separate Briefs in Support, Appendix N,

pp. 132a-157a and P, pp. 164a-167a, filed by the Oblates

on May 23, 2000.) Again, it was argued that the exercise

of subject matter jurisdiction by the lower court violated

the First Amendment to the United States Constitution.

On July 10, 2000, the Oklahoma Supreme Court denied

the Church Petitioners’ applications for the court to

assume jurisdiction in order to consider their First

Amendment jurisdiction contentions. (Appendix B, pp.

3a-4a.)

5

Meanwhile, discovery requests had been pending

against the Church Petitioners in the trial court. On Jan-

uary 10, 2000, Respondents had issued Requests for

Production of Documents and Requests for Admissions

to the Oblates. (Appendix H, pp. 79a-84a and I, pp. 85a-

93a.) On April 7, 2000, the Respondents had issued

Requests. for Production of Documents to Petitioner/

Defendant Archdiocese of Oklahoma City. (Appendix J,

pp. 94a-103a.) Additionally, Respondents had requested

that Archbishops Salatka and Beltran be produced for

deposition.

On June 1, 2000, the trial court had granted a motion

to stay all proceedings until the Oklahoma Supreme

Court had ruled upon the Church Petitioners’ Application

to Assume Original Jurisdiction and Petition for Writ or

Prohibition. However, only seven days after the Church

Petitioners’ request to the state Supreme Court was de-

nied, the Respondents had filed Motions to Compel against

the Church Petitioners to force their responses to the

outstanding discovery requests. (See Appendix S, pp.

198a-200a.) As of the time of the filing of this Petition

for Certiorari, the lower court has not resolved the Re-

spondents’ Motions to Compel, but the hearing on the

matter is set for August 22, 2000. (Appendix T, pp.

201a-202a.)

REASONS FOR GRANTING THE WRIT

I.

THIS COURT HAS JURISDICTION BECAUSE OF THE

FINAL NATURE OF THE DISTRICT COURT’S RULING

THAT IT HAS SUBJECT MATTER JURISDICTION OVER

THE CHURCH PETITIONERS.

In the present case, by assuming subject matter juris-

diction in violation of the First Amendment, the state

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6

threatens to force the Church Defendants to produce

documents relating to the Priest reflecting ecclesiastical

concerns in the placement and supervision of priests.

Production of such documents will result in irreparable

harm to the Church Defendants. The intrusion will be

incapable of being undone.

By assuming such subject matter jurisdiction, the state

threatens to intrude on church administration by sub-

jecting churches to common law liability relative to

selection, retention and supervision of ordained clergy.

By assuming such subject matter jurisdiction, the state

threatens to impose a “reasonable bishop”’ standard on

the Church Defendants thereby unconstitutionally

entangling the state in the internal affairs of all churches.

A. The Oklahoma Supreme Court’s Refusal to

Accept Original Jurisdiction and Issue Writ of

Prohibiton Renders The Trial Court’s Ruling

Into a Final Judgment.

In instances where the highest court in a state has

denied a Petition for Certiorari or Writ of Error, to exam-

ine a lower court decision, this Court has considered the

ruling at issue to be a final judgment for purposes of

exercising jurisdiction. California v. Trombetta, 467 U.S.

479, 484 (1984) (Court of Appeals decision reviewed

after party unsuccessfully petitioned for certiorari in

the state supreme court); Construction Laborers v. Curry,

371 U.S. 542, 550 (1963); Western Union Tel. Co. v.

Crovo, 220 U.S. 364, 366 (1911) (Writ of Error denied

by state supreme court, U.S. Supreme Court reviewed

judgment of law and equity court).

The Oklahoma Supreme Court’s refusal to act by

issuing a Writ of Prohibition on the trial court’s uncon-

stitutional assertion of subject matter jurisdiction ren-

Re

ders the trial court’s decision a final judgment. This

court has previously treated a state’s highest court’s

inaction in failing to lift what appeared to be unconsti-

tutional restraint as a final decision. Nebraska Press

Ass'n v. Stuart, 423 U.S. 1327, 1329-1330 (1975) (The

delay by the Supreme Court of Nebraska in ruling would

cause a delay “‘for a period so long that the very day by

day duration of that delay would constitute and aggra-

vate a deprival of such constitutional rights, if anv, that

the petitioners possess and may properly assert”’); North

Dakota Pharmacy Bd. v. Snyder’s Stores, 414 U.S. 156,

161 n.4 (“We did not wait until litigation had been

resolved in the state court, as the state court had finally

determined its jurisdiction and erroneously”)

Plainly, the prospect of the lawsuit in question going

forward against the Church Petitioners, and subjecting

them to discovery, as well as the possibility of mone-

tary damages for the exercise of their First Amendment

rights in retaining and supervising a clergyman, would

not only chill, but irreparably harm those constitution-

ally protected freedoms.

B. The Assertion of Subject Matter Jurisdiction

And Requiring That Church Petitioners be

Subjected to Discovery Cannot Be Meaning-

fully Reviewed At a Later Point By an Appel-

late Court.

The Constitutional issues of jurisdiction, excessive

entanglement and intrusiveness of discovery would be

moot if this Court does not grant certiorari. The pro-

verbial horse will be out of the bam. This Petition is

the last resort to bar the door before a constitutional

deprivation runs wild.

8

The Church Petitioners have been requested, through

the discovery process, codified by the Oklahoma Discov-

ery Code, Title 12 O.S. §§3226, 3228, 3230, 3233,

3234 and 3237, to produce documents regarding church

personnel policy and procedures. The Respondents have

also sought discovery by way of deposition of Petitioners,

Archbishops Beltran and Salatka, to question them

about their mental processes concerning any supervision

regarding the priest in question. Clearly, the breadth of

Catholic theological and moral training will come under

scrutiny. The church’s teaching is geared to have one

walk in moral purity before God.

In N.L.R.B. v. The Catholic Bishop of Chicago, 440

U.S. 490 (1979), this Court prohibited the National

Labor Relations Board from exercising jurisdiction over

a Catholic parochial school. The Court stated that the

Board’s exercise of jurisdiction over the parochial school

to determine labor issues ‘‘would give rise to serious con-

stitutional questions.”’ Jd. at 501. The Court found

there is excessive entanglement into free exercise of reli-

gion issues. This Court stated: “It is not only the con-

clusions that may be reached by the Board which may

impinge on rights guaranteed by the Religious Clauses,

but also the very process of inquiry leading to findings

and conclusions.” Jd. at 502. The Court referred to the

deposition of the director of one of the schools as an

illustration of the intrusiveness into such proceedings.

The excerpts of the testimony of Monsignor O’Donnell

indicates that he was examined concerning what type

of prayers were defined as ‘“‘liturgy’? and how many

masses were required of Catholic parochial high schools.

Id. at 507-08. The testimony excerpts demonstrate

this Court found that a constitutional infringement

occurs when clergymen are deposed concerming the

details of church policy relating to the theological func-

9

tions. A religious organization has immun_y from civil

discovery and judicial scrutiny regarding placement of

clergy. See also, First United Church v. White, 571 A.2d

790, 792 (D.C. App. 1990); Rayburn v. General Conf.

of Seventh Day Adventists, 772 F.2d 1164, 1171 (4th

Cir. 1985).

The exercise of jurisdiction over the Archdiocese and

Archbishops at issue is more intrusive than the state

action in Catholic Bishop, supra. Here, the District

Court seeks discovery conceming the placement of a

clergyman which is in the very heart of the zone of First

Amendment protection. Therefore, the instant Petition

presents a more compelling case for this Court to grant

certiorari than in the Catholic Bishop case.

The Oklahoma Supreme Court has refused to grant

the Petition to Assume Original Jurisdiction in order to

review the First Amendment issues of this case. Church

Petitioners would be burdened with intrusive discovery,

since they have been denied any appellate review. Church

Petitioners will be ordered by the Court to cooperate

with discovery, such as provide the production of docu-

ments or deposition testimony, or be subject to sanc-

tions and the possibility of contempt of court as per Title

12 O.S. §3237. Church Petitioners have no other avenue

for protection from the state’s exercise of jurisdiction —

barring outright defiance of the trial court.

This Court has granted jurisdiction where a petitioner

could only preserve a constitutional issue in face of the

real prospect of having to defy the court exercising jur-

isdiction. North Dakota Pharmacy Bd. v. Snyder’s

Stores, 414 U.S. 156, 163 (1973) (Quoting Chief Jus-

tice Taney, ‘“‘The right of appeal is of very little value to

him and he may be ruined before he is permitted to

avail himself of the right.’’) See also, Cox Broadcasting

10

Corp. v. Cohn, 420 U.S. 469, 506 (1975) (“. . . where

the proper forum for trying the issue joined in the state

courts depends on the resolution of the federal question

raised on appeal, sound judicial administration requires

that such a question be decided by this Court . . . sooner

rather than later in the course of litigation.’”’) (Rehnquist

dissenting opinion).

This Court has granted petitions for certiorari, even

though no trial on the merits had occurred, to decide the

question of whether the Constitution itself would permit

the assertion of jurisdiction. Rush v. Savchuk, 444 US.

320 (1980); World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286 (1980); Kulko v. California Superior Court,

436 U.S. 84, 90 n.4 (1980); Shaffer v. Heitner, 433 U.S.

186, 195-196 n.12 (1977).

Accordingly, the intrusiveness of discovery in the free

exercise of religion issues, together with the necessity to

review subject matter jurisdiction, create a compelling

situation for this Court to intervene by way of certiorari.

C. The First Amendment Protections to Church

Petitioners Are Conclusive to Plaintiffs’ Cause

of Action.

In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

479-486 (1975), this Court identified four categories of

cases in which federal issues could determine that a state

court order could be deemed as ‘“‘final’’, even though

the state court proceedings had not been completed. The

Cox criteria enables this court to assert jurisdiction

through a Petition for Certiorari. The first criteria is

whether the federal issue is conclusive. Should this court

decide that Plaintiffs’ lawsuit is barred by the First

Amendment, it would effectively conclude the Plain-

tiffs’ lawsuit.

11

D. The Issue of the Scope of First Amendment

Protection Requires A Decision Concerming

Jurisdiction Regardless of the Outcome of the

State Proceedings.

Another instance wherein the Court could exercise jur-

isdiction under Cox, is when a federal issue, finally

decided by the highest court in the state, will survive and

require a decision regardless of the outcome of future

state court proceedings. Jd. at 480. As will be demon-

strated in the following arguments, the heart of Plaintiffs’

cause of action will bring review by a secular court of the

internal functions and personnel placement of clergymen

within the Archdiocese of Oklahoma City and the Ob-

lates of St. Francis de Sales. Plainly, the degree of pro-

tection the Church Petitioners have under the First

Amendment is vital to their defenses.

E. Refusal Of The Supreme Court To Review The

First Amendment Issues In The Instant Case

Would Seriously Erode Federal Policy Even

Though The State Proceedings Are Arguably

Not Final.

Cox permits this court to exercise jurisdiction where

the state judgment finally disposes of a federal issue;

reversal by the Court would terminate the state action;

and the Supreme Court’s refusal to review the federal

issue might seriously erode federal policy. Cox, supra,

at 482-83.

For instance, this Court has granted certiorari to re-

view cases where state courts made decisions conceming

the National Labor Relations Act. Belknap, Inc. v. Hale,

463 U.S. 491 (1983); Construction Laborers v. Curry,

12

supra. Here, the issues involving the First Amendment

Religion Clauses present vital federal policy considera-

tions because the Constitution is the supreme of the law

of the land,

On prior occasions, this Court has stated how funda-

mental free exercise of religion is to the concept of lib-

erty in America. In Catholic Bishop, supra, this Court

stated: ‘“‘The values enshrined in the First Amendment

plainly rank high ‘in the scale of our national values’.”’

U.S. at 501. See Cantwell v. State of Connecticut, 310

U.S. 296, 303 (1940) (“The fundamental concept of

liberty embodied in [the Fourteenth Amendment] em-

braces the liberties guaranteed by the First Amendment.’’)

Malloy v. Hogan, 378 U.S. 1, 4 (1964) (“[I] mmune from

state invasion [is] every First Amendment protection

for the cherished rights of mind and spirit — the freedoms

of speech, press, religion, assembly, association, and peti-

tion for redress of grievances.”) The ‘“‘exercise of reli-

gion” involves not only belief and profession, but the

performance of physical acts. Among them are assemb-

ling with others for worship service, participating in sac-

ramental use of bread and wine, proselytizing, abstaining

from certain foods or certain modes of transportation.

Employment Division, Department of Human Resources

of Oregon v. Smith, 494 U.S. 872, 877 (1990).

Traditionally, this Court has given special attention

to First Amendment issues in ruling on questions of

finality of judgment. For instance, in Nat. Socialist

Party of America v. Village of Skokie, 432 U.S. 43

(1977), this Court accepted jurisdiction on a Petition for

Certiorari to decide First Amendment freedom of expres-

sion issues. The circuit court of Cook County entered

an injunction prohibiting the National Socialist Party of

America’s members from marching within the Village of .

Skokie, Illinois. The Illinois Court of Appeals denied

13

an application for a stay pending appeal, as did the higher

Illinois Supreme Court. The Illinois Supreme Court’s

denial of the stay, as a practical matter, ‘‘finally deter-

mined the merits of the petitioner’s claim that the out-

standing injunction will deprive them of rights protected

by the First Amendment during the period of appellate

review which, in the normal course, may take a year or

two tc complete.’’ Jd. at 44. The Illinois Supreme Court,

by refusing to hear the matter, entered an order that

“‘constituted a denial of that right.” Jd.

Later, in Ft. Wayne Books, Inc. v. Indiana, 489 U.S.

46 (1989), this Court granted certiorari. The Court

again recognized that adjudicating the proper scope of

First Amendment protections as a ‘federal policy”

merits the application to the exception of the general

“finality” rule. Jd. at 55. Ft. Wayne concemed the issue

of whether the First Amendment was violated when a

book store selling pornography was prosecuted under the

state’s RICO law. See also, Miami Harold Publishing Co.

v. Tornillo, 418 U.S. 241, 246-47 n.6 (1974) (“Whicl

ever way we decide on the merits, it would be intolerable

to leave unanswered, under these circumstances, an

important question of freedom of press under the First

Amendment; an uneasy and unsettled constitution of

posture could only further harm the operation of a free

press.’’)

Certainly, under the Court’s pronouncement in Mal-

loy, supra, the freedom of religion is no less cherished

than the freedom of speech in the press and right of

association. Given the intrusiveness of a discovery pro-

cess in this case, and the potential exposure for money

damages, it is of national importance for religious organi- _

zations to have the U.S. Supreme Court articulate the

extent of their protection under the First Amendment

for alleged tortious conduct of clergymen.

14

II,

THE DECISION BELOW CONFLICTS WITH THIS

COURT’S TEACHING THAT THE FIRST AMENDMENT

PROTECTS AGAINST THE STATE’S INTERFERENCE

WITH A RELIGIOUS ORGANIZATION’S INTERNAL

MATTERS THAT PERTAIN TO THE SELECTION AND

SUPERVISION OF CLERGYMEN.

“First Amendment values are plainly jeopardized

when . .. litigation is made to turn on the resolution by

civil courts of controversies over religious doctrine and

practice.” Presbyterian Church v. Hull Church, 373

U.S. 440, 449 (1969). This Court has held on prior occa-

sions that civil courts must accept as conclusive the deci-

sions of highest ecclesiastical judicatories of a hierarchical

church in religious matters conceming clergymen. Wat-

son v. Jones, 80 U.S. (13 Wall.) 679, 727-729 (1871);

Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16

(1929); Kedroff v. St. Nicholas Cathedral of the Russian

Orthodox Church, 344 U.S. 94, 113-115, 120-121 (1952)

later opinion, Kresshitk v. St. Nicholas Cathedral of the

Russian Orthodox Church, 363 U.S. 190 (1960); Serbian

Orthodox Diocese v. Miltvojevich, 426 U.S. 696, 723

(1976).

In Watson, this court held a secular court has no juris-

diction, “where a subject matter of dispute, strictly and

purely ecclesiastical in tts character, — a matter over which

the civil courts exercise no jurisdiction. — a matter which

concerns theological controversy, church discipline,

ecclesiastical government, or the conformity of members

of the church to the standards of morals required of

them, — becomes the subject of tts action.”’ Id. at 733.

- The reason why a secular court could not exercise jur-

isdiction was explained in Watson: ‘‘But it is easy to see

that if the civil courts are to inquire into all of these mat-

ters, the whole subject of the doctrine of theology, the

15

usages and customs, the written laws, and fundamental

organization of every religious denomination, and must

be, examined into with minuteness in care, for they

would become, in almost every case, the criteria by which

the validity of the ecclesiastical decree would be deter-

mined in the civil court. This principle would deprive

these bodies of the right of construing their own church

laws, which would open the way to all the evils which we

have depicted ...” Id. at 733-734.

The principle again was enunciated in Gonzalez, supra:

“Because the appointment [to a chaplaincy] is a canon-

ical act, it is the function of church authorities to deter-

mine what the essential qualifications of a chaplain are

and whether the candidate possesses them.” U.S. at 16.

See also, Kedroff, 344 U.S. at 116, supra. (“The free-

dom to select the clergy, where no improper methods

of choice are proven, we think must now be said to have

federal constitutional protection as a part of the free

exercise of religion against state interference.’’) Like-

wise, in Serbian Orthodox Diocese, 426 U.S. at 723, the

Court held, “. . . Civil courts are bound to accept the

decisions of the highest judicatories of a religious organi-

zation of higher polity on matters of discipline, faith,

internal organizations, or ecclesiastical rule, custom or

law.”

Ironically, the Oklahoma Supreme Court has typically

followed this Court’s teachings to insulate religious organ-

izations from the secular review of their administrative

actions.! However, in the recent case of N.H. v. Presby-

"Bladen v. Presbyterian Church of Sallisaw, 857 P.2d 789

(Okla. 1993) (The Free Exercise Clause of the First Amendment

must shield the church from tort liability on a parishioner’s suit

when the church’s act occurs in the context of the church’s eccles-

iastical jurisdiction); Hadnot v. Shaw, 826 P.2d 978, 988 (Okla.

[foomote continued]

16

terian Church, (U.S.A.), 99 OK 88, 4 26, the Oklahoma

Supreme Court declined to make a ruling on whether the

First Amendment barred all employment related liability

of religious organizations for the acts of its clergymen.”

The court did hold, as a matter of law, that sexual con-

tact between an ecclesiastical officer and parishioner is

outside the scope of employment. Jd. 917. In the in-

stant case, the Oklahoma Supreme Court declined again

to consider the vital issue of whether the First Amend-

ment bars liability of a religious organization for the

alleged torts of clergymen. It not only avoided that issue

by refusing to accept original jurisdiction, but also the

issue of whether intrusive discovery infringes on the free

exercise of religion.

Il.

THE EXERCISE OF SUBJECT MATTER JURISDICTION,

AND SUBJECTING THE CHURCH PETITIONERS TO THE

DISCOVERY PROCESS AND THE PROSPECT OF MONEY

' DAMAGES IS NOT THE LEAST RESTRICTIVE MEANS

IN PROTECTING THE INTERESTS OF THE STATE AND

INDIVIDUALS FOR VINDICATION OF THE TORTIOUS

ACTS OF CLERGYMEN.

In the cases invoking free exercise analysis, the Court

has applied the compelling state interest test. Sherbert v.

1992) (‘When the target of civil litigation is the church’s imple-

mentation of its valid ecclesiastical judicature, the Free Exercise

Clause of the First Amendment will afford a shield from interfer-

ence by secular inquest’’); Guinn v. Church of Christ of Collins-

ville, 775 P.2d 766, 772, n.18 (Okla. 1989) (“*. . . We are of the

opinion that a church’s disciplinary decisions are protected from

judicial scrutiny . . .’’).

2“Because we hold that — even assuming an agency or em-

ployment relationship between Brigden [the clergyman] and the

national organization — no liability may be imposed, we need not

determine whether the First Amendment would stand as bar to all

employment-related liability of an ecclesiastical organization for its

ministerial officers.’’ Jd. 9 26.

17

Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406

U.S. 205 (1972); Thomas v. Review Board of Indiana

Employment Security Division, 450 U.S. 707 (1981).

The compelling state interest test requires a three stage

analysis: (1) whether the conduct in question is moti-

vated by a sincerely held religious belief; (2) whether the

state action infringes on the free exercise of religion;

and (2) whether there is a state interest of sufficient mag-

nitude to override the interest claiming the protection of

the Free Exercise Clause. Yoder, supra. The third stage

of this analysis requires a balancing of interest: Whether

the state’s interest is so compelling that the church’s free

exercise interest must give way. If an overriding interest

is demonstrated, the state must use the Jeast intrusive

means to protect that interest. Cantwell v. Connecticut,

310 U.S. 296 (1940); McDaniel v. Paty, 435 U.S. 618

(1978); Thomas v. Review Board, supra; Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520 (1993).

In the present case, the compelling state interest is argu-

ably that of protecting children from sexual predators.

However, the state already has mechanisms in place to

further that interest — civil and criminal penalties against

the molester. The least intrusive means would allow the

criminal prosecution of the offending clergymen. The

offending clergymen would also be subject to a civil suit

for any damages. The fact that a religious organization

where the clergyman is associated has a “deep pocket”’

should not alter the least intrusive means balancing test.

The Respondents’ lawsuit is illustrative of the broad

shotgun effect of lawsuits for the tortious conduct of the

clergymen. Every religious organization associated with

the priest in question has been targeted by the Respond- -

ents for a broad dragnet to be summoned to the bar and

exposed to the prospect of a money damages judgment.

18

The unconstitutional prosecution of the “‘deep pocket”’

Church Defendants, in a lawsuit seeking money damages,

is not the least intrusive means to accomplish the state’s

interest of protecting children.

The Oklahoma courts allow common law claims

against an employer for their agents’ wrongful acts if the

employer had notice of the agents’ propensities. Pres-

byterian Church, supra, 421 1999 OK 88. It is antici-

“. patéd that thé Resporidents will claim that such a facially

neutral law can be applied to religious organizations with-

out offending the Constitution. However, even applica-

tion of a neutral law can have an impermissible impact

upon protected religious beliefs. A facially neutral law

is not determinative in finding whether it will pass con-

stitutional muster. ‘ Gilette v. United States, 401 US.

437, 452 (1971). The Free Exercise Clause, like the Es-

tablishment Clause, extends beyond facial discrimination.

The Clause forbids subtle departures from neutrality

and covert suppression of particular religious beliefs.”

Id.; Bowen v. Roy, 476 U.S. 693, 703 (1986) (Opinion

of Burger, C.J.). A regulation neutral on its face, in its

application, may offend the constitutional requirement

for government neutrality if it unduly burdens the free

exercise of religion. Wisconsin v. Yoder, 406 U.S. 205

(1972). “Official action that targets religious conduct

for distinctive treatment cannot be shielded by mere

compliance with the requirement of facial neutrality.”

Church of the Lukumi Babalu Aye, Inc. v. City of Hia-

leh, 580 U.S. 520, 534 (1983).

In Respondents’ lawsuit, a jury would have to decide

how a “reasonable bishop” should properly supervise a

clergyman. They would choose one form of supervision

over another. This targeting of religious practice does

19

not pass the muster of the Free Exercise Clause. More

damaging ts the end result of such lawsuit leads to the

indirect control over the future affairs of a religious

denomination, creating a chill on the exercise o f religion.

It is undisputed that the Christian faith emphasizes

such theological teaching as mercy, forgiveness and

redemption and rehabilitation commonly called, ‘‘grace’’.

A sinner saved by grace can be redeemed to walk in moral

purity.

Such concepts stem from deep religious convictions,

shared by an organized group, which are intimately rela-

ted to the relationship of the Church Defendants with its

clergy. The balancing of interests test applied by this

Court does not allow governmental inquiry into the

reasonableness of beliefs which are fundamental to the

Roman Catholic faith, when other less intrusive means

exist to protect the state’s interest. The balancing test

requires the state to use those alternative methods which

do not infringe upon First Amendment rights.

One need look no farther than the Scriptures to see

these concepts carried out. The Book of Exodus reveals

that Moses, the Deliver, had murdered an Egyptian,° yet

God still used him for service to lead the Israelites to the

Promised Land. King David of Israel was confronted by

the prophet Nathan that he arranged for the untimely

death of Bathsheba’s prior husband.* Psalm 5] records

his repentance: “Create in me a pure heart oh God; and

renew a right spirit within me.’® The Book of Acts rec-

ords that St. Paul persecuted Christians and had them

imprisoned for their faith.© St. Paul wrote the majority

3 Exodus 2:11.

411 Samual 12:1-14.

5Psalm 51:10 KJV.

6 Acts 9:1-2.

20

of the text of the New Testament, yet still considered

himself to be the ‘‘chief of sinners’’.’ There is clearly a

dichotomy in perspectives between secular standards of

employment and ecclesiastical standards with regard to

the hiring, supervision and retention of clergymen. What

may be an unacceptable past in a secular view, may not

disqualify one from ministry because of grace.

The “notice requirement” is not neutral and does not

remove First Amendment barriers. It fails to take into

account situation where a clergyman may have fallen off

the “straight and narrow path’’, and underwent therapy

and penance under the Church’s guidance. The Church

would deem the rehabilitation spiritually sufficient to

release the clergyman back into pastoral duties. A law-

suit under the ‘‘notice requirement’’ would allow a sec-

ular court to second guess the reasonableness of the

spiritual rehabilitation undertaken by the Church of the

clergyman, because he “strayed”? again. Accordingly,

the least restrictive way so as not to infringe on the free

exercise of these religious concepts would be for the

clergyman, himself, to be subject to criminal and civil

sanctions, which already exist to protect children from

sexual misconduct.

The Supreme Court of Wisconsin recognized the con-

stitutional problems of this same dilemma in the case of

L.L.M. v. Clauder, 563 N.W. 2d 434 (Wis. 1987). It

observed:

“The reconciliation and counseling of the errant

clergyperson involves more than a civil employer’s

- file of reprimand or a three day suspension without

pay for misconduct. Mercy and forgiveness of sin

may be concepts familiar to bankers, but they have

71 Timothy 1:15 KJV

21

no place in the discipline of bank tellers. For clergy,

they are interwoven in the institution’s norms and

practices. Therefore, due to the strong belief in re-

demption, a bishop may determine that a way ward

priest can be sufficiently reprimanded through

counseling and prayer. If a court was asked to re-

view such conduct to determine whether the bishop

should have taken some other action, the court would

directly estrange itself from the religious doctrines

of faith, responsibility and obedience.” Jd. at q 23.

The Clauder court found that the First Amendment

barred such negligent supervision lawsuits against a reli-

gious organization.

IV.

CERTIORARI SHOULD BE GRANTED IN ORDER TO

RESOLVE THE CONFLICTS BETWEEN THE VARIOUS

STATE AND FEDERAL COURTS ON WHETHER THE

FIRST AMENDMENT WOULD ALLOW A CAUSE OF

ACTION AGAINST A RELIGIOUS ORGANIZATION FOR

THE ALLEGED TORTS COMMITTED BY CLERGYMEN.

The following cases recognized for a court to assume

jurisdiction over the matter would create excessive entang-

lement between church and state and, thus, violate the

First Amendment.

The leading case in this vein is Schmidt v. Bishop, 779

F.Supp. 321 (S.D. N.Y. 1991), which arose out of a claim

that a minor was molested by a minister. Thus, the mi-

nor sued the National Presbyterian Church for the alleged

negligent retention and placement and supervision of the

minister. The words of the opinion capture the heart of

Church Petitioners’ defense in the instant case:

“Furthermore, any inquiry into the policies and

practices of the church defendants in hiring or sup-

eruising their clergy raises the same kind of First

22

Amendment problems of entanglement discussed

above, which might involve the court in making sen-

sitive judgments about the propriety of the church

defendants’ supervision in light of their religious

beliefs. Insofar as concerns, retention or supervi-

sion, the pastor of a Presbyterian church is not anal-

ogous to a common law employee. He may not

demit his charge, nor be removed by the session,

without the consent of the Presbytery, functioning

essentially as an ecclesiastical court. The traditional

denominations each have their own intricate prin-

ciples of governments, as to which the state has no

rights of visitation. Church governance is founded

in scripture, modified by reformers over almost to

millenia. ...

It would, therefore, also be inappropriate and un-

constitutional for this court to determine after the

fact that the ecclesiastical authorities negligently

supervised or retained the defendant bishop. Any

award of damages would have a chilling affect lead-

ing indirectly to state control over the future con-

duct of affairs of a religious denomination, a result

violative of the text and history of the Establish-

ment Clause.” Jd. at 332. (emphasis added)

In a lawsuit involving a Catholic archdiocese involving

allegations of sexual molestation of a young boy, the

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

1998), made the following holding:

“The court finds that plaintiff’s negligent hiring

claim would violate both the free exercise and

establishment clauses. Like the majority of cases

cited, this court finds that consideration of the hir-

ing policies of the archdiocese defendants would

inevitably require examination of church policy and

doctrine. The choice of individuals to serve as min-

isters is one of the most fundamental rights belong-

23

ing to a religious institution. It is one of the most

important exercises of a church’s freedom from

government control. For this court to insert itself

into the process by which priests are chosen would

substantially burden these defendants’ free exer-

cise of a crucial power to control the future of the

church and, therefore, constitute interference with

the practice of their religion.

‘It would also cause excessive entanglement in

church operations by fostering an appropriate gov-

ermment involvement. The application of even gen-

eral tort law principles to church procedures on the

choice of priests would require an inquiry into pre-

sent practices with an intent to pass on their rea-

sonableness. Such court examination and oversight

of internal church policies would constitute an en-

croachment upon the church’s religious functions.”

Id. at 1250.

In the instant case, the trial court accepted jurisdiction

in this matter, and has put itself in the awkward position

of evaluating the theological concepts of ““‘grace”’ and

“mercy”. “Beliefs in penance, admonition and reconcil-

iation as a sacramental response to sin may be the point

of attack by a challenger who wants a court to probe the

tort law reasonableness of the church’s mercy toward of

the offender. . .” Pritzlaff v. Archdiocese of Milwaukee,

194 Wis.2d 302, 533 N.W.2d 780, 790 (1990) cert. denied

— U.S. —__, 116 S.Ct. 920, 133 L.Ed.2d 849 (1996).

In wrestling with the same issue, the Maine Supreme

Court found: ‘‘To import agency principles wholesale

into church governance and to impose liability for any

deviation from the secular standard is to impair the free

exercise of religion and to control denominational gov-

emance.’”’ Swanson v. Roman Catholic Bishop, 692 A.2d

441, 445 (Me. 1997). The Maine court went on to con-

clude: “. . . imposing a secular duty of supervision on

24

the church and enforcing that duty through civil litiga-

tion . .. would not serve a societal interest sufficient to

overcome the religious freedoms inhabited.” Jd.

Gibson v. Brewer, 952 S.W.2d 239, 247 (Mo. 1997)

(First Amendment barred a negligent failure to super-

vise a clergyman. ‘‘Adjudicating reasonableness of a

church’s supervision of a cleric — what the church ‘should

know’ — requires inquiry into religious doctrine.”’); Doe

v. Evans, 718 So.2d 286, 291 (Fla.App. 4 Dist. 1998)

(“‘[A] court’s determination regarding whether the

church defendant’s conduct was ‘reasonable’ would nec-

essarily entangle the court in issues of the church’s reli-

gious law, practices and policies. ‘Hiring’ in a traditional

sense does not occur in some religions, where a person is

ordained into a particular position in the church, and is

assigned to one parish or another.”’)

The following cases hold that the First Amendment

does not bar negligent hiring causes of actions against

religions organizations: Bear Valley Church of Chnst v.

DeBose, 928 P.2d 1315 (Colo. 1996) cert. denied, 520

U.S. 1241; Parks v. Kownacki, 305 Ill.App.3d 449, 711

N’E.2d 1208 (1999); Doe v. Hartford Roman Catholic

Diocesan Corp., 716 A.2d 960 (1998); Kenneth R. v.

Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159,

654 N.Y.S.2d 791 (1997) cert. denied, __ U.S. __.,

118 S.Ct. 413 (1997).

Because of the split of authority on this issue, it is

critical to the well-being of religious liberty in this

country that this Court weigh in and resolve these issues

by granting certiorari in this case.

25

V.

SUBJECTING RELIGIOUS ORGANIZATIONS TO A

‘““REASONABLE BISHOP” STANDARD IS VIOLATIVE OF

THE ESTABLISHMENT CLAUSE.

The Church Petitioners would submit that the Res-

pondents’ cause of action for negligent hiring, retention,

supervision and breach of fiduciary duty violates the es-

tablishment clause. Such scrutiny of church policy, pro-

cedure and hiring and supervision practices would cause

the secular court to cause entanglement with religion,

contrary to the test the Supreme Court set forth in

Lemon v. Kurtzman, 403 U.S. 602 (1971).

The Supreme Court of Wisconsin recognized the con-

stitutional problems in allowing a negligent hiring and

retention lawsuit to proceed against a religious organiza-

tion and its L.L.M. v. Clauder decision, supra. It found

that a negligent supervision claim would “require a court

to formulate a ‘reasonable cleric’ standard, which would

vary depending on the cleric involved.” It also cited with

approval the following language from a Law Review arti-

cle, Clergy Sexual Misconduct, Confronting the Diffi-

cult Constitutional & Institutional Liability Issues, 7 St.

Thomas L. Rev. 31 (1994): “Our pluralistic society dis-

likes having its neutral jurists place themselves in the role

of a ‘reasonable chief rabbi’, ‘reasonable bishop’, etc.,

because of the degree of involvement that must accom-

pany such a decisional framework for a civil tort judge.”

26

VI.

AN EXERCISE OF SUBJECT JURISDICTION BY THE

STATE COURT WOULD LEAD TO AN UNAVOIDABLE

CLASH WITH THE CANON LAW OF THE CATHOLIC

CHURCH.

The following Code of Canon Laws of the Catholic

Church are applicable to the facts as alleged in Plaintiffs’

Petition because the bishop’s exercise of discretion while

under the inspiration of the Holy Spirit has clearly been

put at issue by the Plaintiffs. Plaintiffs’ lawsuit would

require a jury to review the reasonableness of how the

bishop exercised his discretion in carrying out his duties

outlined under the canon law of the church.

“Canon 375:

(1) Bishops, who by divine institution, succeed to

the place of the apostles through the Holy Spirit

who has been given to them, are constituted pas-

tors in the church, so they are teachers of doctrine,

priests of sacred worship, and ministers of govern-

ance.

(2) Through episcopal consecration itself, bis-

hops receive, with the function of sanctifying also

the functions of teaching and governing, by their

nature, however, these can be exercised only in the

hierarchical communion with the head and members

of the college.”” (emphasis added) (Appendix U,

p. 203a)

Canon 524 discusses the bishop’s authority to place

priests he sees fit under the inspiration of the Holy

Spirit as described in Canon 375:

“Canon 524:

After he [the bishop] has weighed all the circum-

stances, the diocesan bishop is to confer a vacant

parish on the person whom he judges suited to fill

27

its parochial care without any partiality; in order to

make a judgment conceming a person’s suitability,

he is to listen to the vicar forane, conduct appro-

priate investigations and, if warranted, listen to cer-

tain presbyters and lay persons of the Christian

faithful.” (emphasis added) (Appendix U, p. 205a)

Canon 524 makes it very plain that the bishop has the

discretion, under the inspiration of the Holy Spirit, to

make decisions as to the qualifications of placing a priest

in a given parish.

Equally formal and binding is the Catechism of the

Catholic Church which is a compilation of the theolog-

ical teachings and beliefs of the Roman Catholic Church.

This document was, in 1994, promulgated by His Holi-

ness, Pope John Paul II. Paragraphs 894 and 895 of the

Catechism further describe the power of the bishops to

gover the affairs of the Catholic Church.

No. 894:

“The bishops, as vicars and legates of Christ, govern

the particular Churches assigned to them by their

counsels, exhortations, and example, but over and

above that also by the authority and sacred power,

which indeed they ought to exercise to as to edify,

in the spirit of service, which is that of their Mas-

ter.” (Appendix V, p. 107a)

No. 895:

“The power which they personally exercise in the

name of Christ is proper, ordinary, and immediate,

although it’s exercise is ultimately controlled by

the supreme authority of the church. But the bis-

hops should not be thought of as vicars of the Pope.

His ordinary and immediate authority over the

whole church does not annul, but on the contrary,

confirms and defends that of the bishops. Their

28

authority must be exercised in common with the

whole Church under the guidance of the Pope.”

(Appendix V, pp. 207a-208a)

The lawsuit in question has placed at issue how the

Church Petitioners would apply the aforementioned

Catholic teachings. For instance, Canon 375 states that

bishops succeed the place of the apostles ‘‘through the

Holy Spirit’? who has been given to them are pastors in

the church. Canon 524 discusses the bishop’s authority

to place priests that he sees fit under the inspiration of

the Holy Spirit to weigh all the circumstances and place

the person he judges suited to fill the parochial care of

a parish. How is a jury supposed to evaluate the arch-

bishop’s communion with the Holy Spirit? No. 894,

the catechism of the Catholic Church, states that bis-

hops are ‘‘vicars and legates of Christ’. No. 895 states

that bishops exercise authority ‘‘under the name of

Chnist”’ and “‘under the guidance of the Pope’’. How can

a jury not evaluate an archbishop’s supervision without

reference to the church’s doctrine and Canon law and

catechisms? How is an archbishop to know if a priest

has sufficiently repented of past sins? Again, the an-

swer to the question requires reference to theological

doctrine, as well as the spiritual guidance of the Holy

Spirit that would enable the archbishop to make such

decisions.

The jury’s determination of what a reasonable bishop

should do forces them to decide how a church should go

about selecting clergymen and supervise them. See Gib-

son v. Brewer, 952 S.W.2d 239, 247 (Mo. banc 1997)

(“This would create an excessive entanglement, inhibit

religion, and result in the endorsement of one model of

supervision.””) This, in effect, establishes an official state

religion. In its review of this situation, a jury must make

i ianiaiceiiiiiiaiiaiicuaisiaiilliilid

29

a decision between what is a good way to supervise

priests and what is a bad way. Rather than being neutral

toward religion, in the instant case, the govemment, by

way of a jury’s determination, would have a hostile

stance against the Church Petitioners should liability be

imposed. An establishment of religious practice is not

neutral. The establishment of religion under the “notice

requirement” would have a jury determine that a “rea-

sonable bishop”’ should bar a clergyman from ministry if

he has a criminal background, even though he has re-

pented from those deeds. The excessive entanglement in

religious practice is manifestly evident.

30

CONCLUSION

Wherefore, above premises considered, Church Petition-

ers pray this Court to grant their Petition for Certiorari.

Respectfully submitted,

Kent Fleming

Brently C. Olsson

Huckaby, Fleming, Frailey, Chaffin,

Cordell, Greenwood & Perryman, L.L.P.

1215 Classen Drive

P.O. Box 60130

Oklahoma City, OK 73146

(405) 235-6648

Attorneys for Petitioners,

Archdiocese of Oklahoma City,

Reverend Charles A. Salatka and

Reverend Eusebius J. Beltran.

David C, Johnston, Jr.

Debra A. Charles

Chubbuck, Smith, Rhodes,

Stewart & Elder

Robinson Renaissance, Suite 820

119 North Robinson Avenue

Oklahoma City, OK 73102

(405) 236-8282

Attorneys for Petitioner,

Oblates of St. Francts de Sales.