Opposition Brief — Archdiocese of Oklahoma City v. Ballard
Supreme Court brief2000
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No. 00-279
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IN THE
Supreme Court of the United States
ARCHDIOCESE OF OKLAHOMA CITY; REVEREND
CHARLES A. SALATKA; REVERENCE EUSEBIUS J.
BELTRAN; and OBLATES OF ST. FRANCIS DE SALES,
Petitioners,
v.
DENNIS W. BALLARD and RONALD BALLARD, individually;
and ALGERENE BALLARD, individually; C.J., a minor, by and
through his parents and next of friends, JMMIE BARTLETT
JOHNSON, JR. and PAMELA GAYLE JOHNSON; and JIMMIE
BARTLETT JOHNSON, JR., individually; and PAMELA GAYLE
JOHNSON, individually,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF OKLAHOMA
BRIEF IN OPPOSITION
GarRVIN A. ISAACS JOHN M. STUART
Garvin A. Isaacs, INC. Counsel of Record
Rainy Mountain Building JAMES M. FRIEDA
123 N.W. Eighth Street STUART, FRIEDA & HAMMOND, P.C.
Oklahoma City, OK 73102 Court Plaza Building
(405) 232-2060 1111 West Willow, Suite 100
Duncan, OK 73533
(580) 252-9033
RANDALL R. LYLE
307 West Seventh Street
Suite 1800
Fort Worth, TX 76102
(817) 390-0303
Attorneys for Respondents
i
QUESTIONS PRESENTED
1. Whether the Court should deny certiorari because the
order sought to be reviewed is not a final judgment?
2. Whether the Court should deny certiorari because
neither a church organization nor its minister is exempt from
tort liability for secular conduct that does not burden the
free exercise or establishment clauses of the First
Amendment?
il
TABLE OF CONTENTS
Questions Pree oc os bcc vh-vanccaus ween es
Tete wf COMES | 6 occ nnn Kha hee
Table of Caled Fm. nk su 8 wh ihe
Seohemees of Gi Ce... . sack kadaaececeeas
A “Fe POO ia sven boa eben tee
B.
ProcteGiat BM. s0 6 Aes
Reasons for Denying the Writ .................
I.
II.
The Court Should Deny Certiorari Because
The Order Sought To Be Reviewed Is Not A
Ines TORE ook ea es ee
The Court Should Deny Certiorari Because
Neither A Church Organization Nor Its
Minister Is Exempt From Tort Liability For
Secular Tortious Conduct That Does Not
Burden The Free Exercise Or Establishment
Clauses Of The First Amendment ........
A. Church Organizations and Ministers are
not immune from tort liability. .......
B. Facially neutral laws require no
compelling state interest First
Amendment analysis. ..............
14
14
21
Contents
Page
C. Religious practice may be burdened to
SE I ig sa wide & Sieg Baie he Wi 23
D. Total separation between church and
state is mot possible. ............... 26
E. Foreseeable risk of harm to society in
the selection, supervision, and retention
of clerics based on prior notice of a
cleric’s deviate sexual behavior
mandates secular liability. .......... 28
SE i BE ERA Ss SEO oe ea ee ee 30
iv
TABLE OF CITED AUTHORITIES
Page
Cases:
Bear Valley Church of Christ v. DeBose, 928 P.2d
1315 (Colo. 1996), cert. denied, 520 U.S.
Rt) of eee Peer rr pire eps 7, 26
Bladen v. First Presbyterian Church, 1993 OK 105
REE aKa eis eew ek ceea teehee ee ss 15, 25
Bladen v. Presbyterian Church of Sallisaw, 857 P.2d
gt | ee rer ny gare Sinan 20
Bowen v. Roy, 476 U.S. 693 (1986) ............. 24, 25
Braunfeld v. Brown, 366 U.S. 599 (1961) ........ 18
California v. Trombetta, 467 U.S. 479 (1984) .... 5
Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508
Oe | ee ere re ee ree 24
Construction Laborers v. Curry, 371 U.S. 542
PEE 60.0 5 CS RK Cn 0 ee Oa A eee 5,6
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469
SURO ia osc dn nh cha oaweeerene 6, 7, 8, 9, 10, 12, 13
Destafan v. Grabrian, 763 P.2d 275 (Colo. 1988) ... 14
Emp. Div., Dept. Human Resources of Oregon v.
Smith, 494 U.S. 872 (1990) ....... iS, Bay 0h, oy ae
v
Cited Authorities
Page
Erickson v. Christenson, 781 P.2d 383 (Or. App.
SUPE Sa nenvaeke bh ease kee aeesey trees 14
Erickson v. Christenson, 99 Or. App. 104, 781 P.2d
Fat Eee eee ee Te ree re ware ne 27
First United Church v. White, 571 A.2d 790 (D.C.
PU. REE 6 on 55 Vaveebaakencunecyeeseoe 16
Fowler v. Rhode Island, 345 U.S. 67 (1953) ...... 24
Frazee v. Employment Security Dep't, 489 U.S. 829
PRRWOE sho be Coins Wate ee neaganue kee aes 16
Ft. Wayne Books, Inc. v. Indiana, 489 U.S. 46
CRE een e RSG cases oaauates aes 13
Gallas v. Greek Orthodox Diocese of N. & S. Am.,
154 Misc.2d 494, 587 N.Y.S.2d 82 (1991) ..... 27
Gonzalez v. Roman Catholic Archbishop, 280 U.S.
Ei ee Sacic ene aeue wae 19, 20
Guinn v. Church of Christ of Collinsville, 775 P.2d
FOO Ge Tas 6s ES 20, 21, 25
Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992) ...... 21, 26
Hobbie v. Unemployment Appeals Comm’n, 480 U.S.
Sey Se ET Ook hae we eu h cae cee ae 16, 17
vi
Cited Authorities
Page
Intercommunity Center for Justice and Peace v. INS,
910 F.2d 42 (2nd Cir. - Md, 1990) ........... 18
International Shoe Co. v. Washington, 326 U.S. 310
EEE vi wk 5 awh ana cede Ved eee 10
Jimmy Swaggart Ministeries v. Board of
Equalization of Cal., 493 U.S. 378 (1990) ..... 27
Jones v. Trane, 153 Misc.2d 822, 591 N.Y.S.2d 927
SUNN 5k ck Kb oxo b ae hae ea eee 27
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94
SUMED hss eka bs 05 Oa 5 HRA ee eee eee 19, 20
Kennedy v. Roman Catholic Diocese of Burlington,
921 F. Supp. 231 (D. Vermont, 1996) ......... 28, 29
Kenneth R. v. Roman Catholic Diocese of Brooklyn,
229 A.D.2d 159, 654 N.Y.S.2d 791 (1997), cert.
dented, S20 US. TOUR CIFRD coc sve tecaess 7, 26
Konkle v. Henson, 672,N.E.2d 450 (Ind. App.) ... 27
Kresshik v. St. Nicholas Cathedral of the Russian
Orthodox Church, 363 U.S. 190 (1960) ....... 19, 20
Kulko v. California Superior Court, 436 U.S. 84
PEPE 6 CU i a's VE REL RSENS DECREE ees 10
vii
Cited Authorities
Page
L.L.N. v. Clauder, 203 Wis.2d 570, 552 N.W.2d 879
CRE a Cad abe CR LA ES OLA Ka RROK ew Cas 27
Larson v. Valente, 456 U.S. 228 (1982) ......... 24
Lemon v. Kurtzman, 403 U.S. 602 (1971) ........ 26
Lyng v. Northwest Indian Cemetery Protective Ass'n,
er Cras EID nk bs 60 0 Ui os ken 650540048 16
Miami Herald Publishing Co. v. Tornillo, 418 U.S.
PE Shek AER ES ae ied bce ces 13,14
Mills v. Alabama, 384 U.S. 214 (1966) .......... 9
Minersville School Dist. Bd. of Ed. v. Gobitis, 310
SPM SE EEE a ek sn hon ko Maid soe awhens 7540 48
Moses v. Diocese of Colo., 863 P.2d 310 (Colo.
1993), cert. denied, 511 U.S. 1137, 114 S. Ct.
2135, 128 L. Ed. 2d 880 (1994) ............ 7, 22, 26
Nat'l Soc. Party of America v. Village of Skokie, 432
PETE cnx eG Sewanee cette eave 12, 43
Nebraska Press Ass'n v. Stuart, 423 U.S. 1327
Sk fan a BN ea ee yes we kche emlnlenele 8
N.H. v. Presbyterian Church, (U.S.A.), 99 OK 88,
998 P.2d 592 (Okla. 1999) ........ 11, 14, 21, 26, 29
Vill
Cited Authorities
Page
N.L.R.B. v. The Catholic Bishop of Chicago, 440 U.S.
SO LES vedas SEC aa ein ae 10
North Dakota Pharmacy Bd. v. Snyder's Stores, 414
Faby SEAT iv kd Coben bak Soden eaedes 8
Nutt v. Norwich Roman Catholic Diocese, 921
Ps Oe, We Gas SA. Fed 8 ie dase 15
Ohio Civil Rights Comm'n v. Dayton Christian
Schools, Inc. 477 U.S. 619 (1986) ............ 21
Presbyterian Church v. Hull Church, 393 U.S. 440
CE 6 5 tN evan cena reed ben eee Ue ees 18
Prince v. Massachusetts, 321 U.S. 158 (1944) ....
ghee ad Ape Marne ay Reed Oe ek Pe Ge > Me yy
Radio Station WOW, Inc. v. Johnson, 326 U.S. 120
CUE 6 606 hairs wa es kos Some eua eae en ake 6
Rayburn.v. General Conf. Of Seventh-Day
Adventists, 772 F.2d 1164 (4th Cir. 1985) ..... 16,17
Reynolds v. United States, 98 U.S. 145 (1879) .... 12
Rivers v. State, 133 Vt. 11, 328 A.2d 398 (1974)... 29
Rush v. Savchuk, 444 U.S. 320 (1980) ........... 10
Serbian Orthodox Diocese v. Milivojevich, 426 U.S.
NTE be Cenk cedbee bea tadee a eelas 19, 20
ix
Cited Authorities
Page
Shaffer v. Heitner, 433 U.S. 186 (1977) ......... 10
Sherbert v. Verner, 374 U.S. 398 (1963) ...... 15, 16, 26
Stevens v. Roman Catholic Bishop of Fresno, 49 Cal.
App. 3d 877, 123 Cal. Rptr. 171 (1975) ....... 27
Thomas v. Collins, 323 U.S. 516 (1945) ......... 15
Thomas v. Review Bd., 450 U.S. 707 (1981) ...... 16
United Methodist Church v. White, 571 A.2d 790
Sees MING PIE She even Cob ao da ee 28
United States v. Ballard, 322 U.S. 78 (1944) ...7,11, 15
United States v. Seeger, 380 U.S. 163 (1965) ..... 18
Watson v. Jones, 13 Wall. 679, 728 4 ig) Bee
AF a ae aries ered ae A Py 7,9, 11, 15, 18, 19, 20
Western Union Tel. Co. v. Crovo, 220 U.S. 362
| Span marie as Dea Minty Pesta aay seh caida Bt 6
Wisconsin v. Yoder, 406 U.S. 205 6) fr) 16, 17, 21
World-Wide Volkswagen Corp. v. Woodson, 444
Sy NE ooh 0 5 0 Re ook i Tea ee eh 10
x
Cited Authorities
Page
Statutes:
Be Wa RANE wh keds cheese setuavabe sees 5, 6, 7,9
yr Bie Pea ibs os) eee reer errr ere 5
BP Was © SUOEED 4k eR e6d cee esekaeaers avens 5
bees SF re rer rer: rer rr 3
Be WN EE 6k ck Meh nnvinses eh ekibenerereses 22
United States Constitution:
sof. Pee reree rr rrr passim
Fourteenth Amendment .................00- ee
Other Authorities:
OR. COE, A CSS vv cen acdciviss cevessntan 4
OR. See. AMG BOS is is ask Sica twersvasiee 22
Restatement (Second) Torts § 317 (B) (ii) ....... 29
1
The Respondents respectfully request the Court to deny
the Church Petitioners’ petition for writ of certiorari. The
Oklahoma Supreme Court declined to assume original
jurisdiction of this case in an 8-0 decision dated July 10, 2000.
STATEMENT OF THE CASE
A. The Facts.
Respondents sued Father John Doe, the Archdiocese of
Oklahoma City (“Archdiocese” herein), Reverend Charles A.
Salatka, Reverend Eusebius J. Beltran, Reverend Alfred J.
Russell, and the Oblates of St. Francis de Sales! (“Oblates”
herein) in the state District Court of Oklahoma County,
Oklahoma, alleging claims arising from the sexual molestation
of Dennis Ballard, a minor at the time of filing, and C.J., a
minor, by Father John Doe, in rural Duncan, Oklahoma when
the Petitioners knew or should have known of the sordid history
of Father John Doe’s sexual misconduct. The Respondents’
claims against the Petitioners include direct and vicarious
liability for intentional and/or reckless infliction of severe
emotional distress, failure to warn, failure to report sexual abuse,
outrageous conduct, civil conspiracy, breach of fiduciary duty,
and for negligent hiring, retention and supervision (“claims”
herein) of Father John Doe.
Father John Doe was a member of the Oblates based in
Toledo, Ohio. The Oblates are a religious organization which
trains, credentials, and ordains Roman Catholic priests. The
Oblates contract with other Catholic entities, including
Petitioner Archdiocese, for the employment of Oblate Catholic
priests. Despite the Oblates’ actual knowledge of Father John
Doe’s history of sexual misconduct with minors, on or about
December 1990, the Oblates contracted with the Archdiocese
for the employment of Father John Doe as pastor of the
Assumption Catholic Church in Duncan, Oklahoma, and the
1. The Archdiocese of Oklahoma City, Reverend Charles A.
Salatka, Reverend Eusebius J. Beltran, and the Oblates of St. Francis
de Sales will be collectively referred to herein as the “Petitioners.”
2
Oblates agreed to transfer Father John Doe from the diocese of
Joliette, Illinois to Duncan, Oklahoma. Father John Doe sexually
molested young boys while a teacher and wrestling coach for
Lumen Christi High School located in The Diocese of Lansing,
Jackson, Michigan. Father John Doe was served with lawsuits,
while carrying out his duties as pastor of the Duncan, Oklahoma
church, alleging clergy sexual misconduct naming him and the
Oblates as defendants. Petitioner Archbishop Charles Salatka
installed Father John Doe to pastor the Duncan, Oklahoma
church in December 1990. Father John Doe again continued
his long pattern of sexual misconduct with minors and molested
Respondent Dennis Ballard for-a period of five years from 1992
to 1997 and Respondent C.J., a minor, from 1996 to 1997.
Even though Petitioners had long known of Father John
Doe’s sexually deviate propensities, it was only after receiving
renewed reports about Father John Doe’s sexual misconduct
that the Archdiocese belatedly notified the Duncan Police
Department about the complaints of sexual molestation, and
the local police arrested Father John Doe. The District Attorney
filed charges against Father John Doe which resulted in the priest
pleading nolo contendere to two counts of lewd molestation of
a minor and was sentenced to the maximum sentence allowed
under Oklahoma law.
B. Proceedings Below.
In September 1999, the Respondents filed suit against the
Petitioners and Father John Doe in the state District Court of
Oklahoma County, Oklahoma, alleging claims arising from the
sexual molestation of Dennis Ballard and C.J., a minor, by Father
John Doe, in rural Duncan, Oklahoma when the Petitioners knew
of the sordid history of Father John Doe’s sexual misconduct.
The Respondents’ claims against the Petitioners include
vicarious liability and direct liability for intentional and/or
reckless infliction of severe emotional distress, failure to warn,
failure to report sexual abuse, outrageous conduct, civil
conspiracy, breach of fiduciary duty, and for negligent hiring,
Pe Se ee ee eee ee ee ee eee ee
ee a
3
retention and supervision of the Petitioners’ priest. (See Third
Amended Petition of Respondent/Plaintiff C.J. dated January
25, 2000, Petitioners’ Appendix D, pp. 14a-22a; and Fourth
Amended Petition of Respondent/Plaintiff Dennis Ballard dated
January 25, 2000, Petitioners’ Appendix C, pp. 5a-13a).
On March 23, 2000, the Petitioners moved to dismiss the
Respondents’ claims under Oklahoma Statutes 12 O.S. 2012
on the ground that the trial court lacked subject matter
jurisdiction under the First Amendment of the United States
Constitution, and Article 1, Section Two of the Oklahoma
Constitution. (See Motions to Dismiss of the Archdiocese filed
in each state court case on February 18, 2000, Petitioners’
Appendix E, pp. 23a-33a; and Amended Motions to Dismiss of
the Oblates, filed in each state court case on March 23, 2000,
Petitioners’ Appendix F, pp. 34a-55a, and Petitioners’ Appendix
G, pp. 56a-78a). Respondents filed responses and briefs and
the parties agreed to submit the issue to the state court on the
briefs.
On May 15, 2000, Oklahoma County District Judge Niles
Jackson overruled the Petitioners’ motions to dismiss and
issued a memorandum Order. (See Petitioners’ Appendix A,
pp. la-2a). The Petitioners sought to invoke the original
jurisdiction of the Oklahoma Supreme Court through an
application to assume original jurisdiction of the cases and a
writ of prohibition barring the Oklahoma County District Court
from exercising subject matter jurisdiction. (See Application to
Assume Original Jurisdiction, Petitioners’ Appendix L,
pp. 120a-125a, and separate Brief in Support, Petitioners’
Appendix K, pp. 94a-103a, filed by the Archdiocese on May
22, 2000; Application to Assume Original Jurisdiction,
Petitioners’ Appendix M, pp. 126a-131a, and separate Brief in
Support, Petitioners’ Appendix N, pp. 132a-157a filed by the
Oblates on May 23, 2000, Supreme Court Case No. 94743; and
Application to Assume Original Jurisdiction, Petitioners’
Appendix O, pp. 158a-163a, and separate Brief in Support,
Petitioners’ Appendix P, pp. 164a-167a filed by the Oblates on
4
May 23, 2000, Supreme Court Case No. 94744). The Petitioners
again argued that the trial court lacked subject matter jurisdiction
under the First Amendment of the United States Constitution,
and Article 1, Section Two of the Oklahoma Constitution.
The Respondents argued in their objections essentially that the
district court had subject matter jurisdiction of Respondents’
tort claims against the Petitioners. On July 10, 2000, the
Oklahoma Supreme Court declined to assume original
jurisdiction of these cases and denied the Petitioners’
Applications to Assume Original Jurisdiction and Petition for
Writ of Prohibition (Petitioners’ Appendix L, pp. 120a-1251,
Petitioners’ Appendix M, pp. 126a-131a, and Petitioners’
Appendix O, pp. 158a-163a).
Respondents had served discovery requests upon the
Petitioners and had sought to take the deposition of the
Archbishop Petitioners. (See Petitioners’ Appendix H, dated
January 6, 2000, pp. 79a-84a, Petitioners’ Appendix I, dated
January 20, 2000, pp. 85a-93a, Petitioners’ Appendix J, April
7, 2000, pp. 94a-103a). However, such discovery was stayed
by Order of the trial court dated June 1, 2000, pending the
decision of the Oklahoma Supreme Court on the Petitioners’
Application to Assume Original Jurisdiction and Petition for
Writ of Prohibition. Once the Oklahoma Supreme Court
declined to assume original jurisdiction, the Respondents again
sought to have the discovery requests answered and filed
motions to compel. (See Petitioners’ Appendix P (incorrectly
stated as Appendix Q in Petitioner’s Table of Contents), dated
July 17, 2000, pp. 164a-167a, Petitioners’ Appendix R, dated
July 17, 2000, pp. 194a-197a, and Petitioners’ Appendix S, dated
July 17, 2000, pp. 198a-200a). The trial court stayed the
proceedings by Order dated August 22, 2000, pending the this
Court’s decision on the Petitioners’ Petition for Writ of
Certiorari.
5
REASONS FOR DENYING THE WRIT
I.
THE COURT SHOULD DENY CERTIORARI BECAUSE
THE ORDER SOUGHT TO BE REVIEWED IS NOT A
FINAL JUDGMENT
The July 10, 2000, unanimous Order of the Oklahoma
Supreme Court declining to assume original jurisdiction over
this case is not a “final judgment” thereby making review of
this case premature and improper under 28 U.S.C. § 1257.
Although Petitioners sought the Oklahoma Supreme Court’s
original jurisdiction through an application to assume original
jurisdiction and petition for writ of prohibition, Petitioners
erroneously argue that this Court should exercise jurisdiction
based on the Oklahoma Supreme Court having denied a Petition
for Certiorari or Writ of Error and this Court’s history of deeming
such decisions as a “final judgment for purposes of exercising
jurisdiction.” (Petitioners’ Petition at pp. 6). Petitioners sought
no such relief. Further, the authorities Petitioners cite as
precedent for this Court to assume jurisdiction are clearly
distinguishable and inapplicable to the instant case.” This Court
2. California v. Trombetta, 467 U.S. 479, 484 (1984) was a
criminal case involving evidentiary issues on whether the state must
preserve breathalyzer samples. After the trial court overruled the
defendants motions to suppress and a jury trial resulted in the certain
Defendants’ convictions, the Defendants appealed to the Court of
Appeal which ruled in the Defendants’ favor, granted them new trials,
and ordered that the intoxilyzer results not be admitted as evidence.
The State unsuccessfully petitioned for certiorari to the California
Supreme Court ultimately seeking certiorari to this Court.
This Court reviewed the case primarily under 28 U.S.C. § 1257(3)
as comparable to a judgment affirming a suppression order. In
Construction Laborers v. Curry, 371 U.S. 542, 550 (1963), this Court
reviewed a decision by the state supreme court granting a temporary
injunction by reversing the trial court’s denial of a temporary
injunction in a case raising issues under the National Labor Relations
Act, 29 U.S.C. § 158(b). In what was clearly a federal pre-emption
(Cont'd)
6
has repeatedly held that its power to review a state court
decision is “limited to a final judgment rendered by the
highest court of the State in which decision may be had.”
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 476-477
(1975). A judgment is final only when nothing “further
remains to be determined by a State court, no matter how
dissociated from the only federal issue that has finally been
adjudicated by the highest court of the State.” Radio Station
WOW, Inc. v. Johnson, 326 U.S. 120, 124 (1945). Petitioners
cited no authority for pre-final judgment review of a secular
tort case involving innocent children injured as a direct result
of sexual molestation by the Petitioners’ priest when the
Petitioners had notice and tolerated such abhorrent behavior
and failed to prevent it. None of the cases cited
by Petitioners stand for the proposition that a petition for
writ of certiorari is under the “final judgment” requirement
of 28 U.S.C. § 1257 where the highest court of the state has
declined to assume original jurisdiction on application to
assume original jurisdiction and petition for writ of
prohibition where there has yet to be a trial on the merits.
There is no constitutional verbiage which characterizes
church sponsored child abuse as a sanctioned religious right,
and this Court should refrain from exercising jurisdiction at
this stage of the case.
In this country the full and free right to entertain
any religious belief, to practice any religious
principle, and to teach any religious doctrine
which does not violate the laws of morality and
(Cont'd)
case, this Court found that the Georgia court “finally and erroneously
assert[ed] its jurisdiction to deal with a controversy which is beyond
its power and instead is within the exclusive domain of the National
Labor Relations Board.” Curry, 37! U.S. at 548. In Western Union
Tel. Co. v. Crovo, 220 U.S. 362, 366 (1911), this Court assumed
jurisdiction to decide a constitutional question under the Commerce
Clause after a jury trial and appeal on writ of error to the highest
court of Virginia.
7
property, and which does not infringe personal
rights, is conceded to all.*
This case raises no unique jurisdictional issues which free
speech, federal pre-emption, state licensure or commerce
clause, free association, or “minimum contacts” cases‘ raise
at the outset of litigation which qualify for pre-final judgment
review under this Court’s test in Cox Broadcasting Corp. v.
Cohn, 420 U.S. 469 (1975). Despite Petitioners’ allegations
to the contrary, this is not simply a negligent retention, hiring
and supervision case because Respondents have also alleged
that the Petitioners are liable to the Respondents under
theories of intentional and/or reckless infliction of severe
emotional distress, outrageous conduct, civil conspiracy,
failure to warn, failure to report sexual abuse, and breach of
fiduciary duty.° All torts occurred as a result of Petitioners’
3. Watson v. Jones, 13 Wall. 679, 728 (1871) (emphasis added).
4. Petitioners erroneously cited these classes of cases as justification
for this Court to assume jurisdiction under 28 U.S.C. § 1257 and
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). However, as this
Court is keenly aware, such cases present vital jurisdictional issues at the
outset of litigation which may require intervention to protect constitutionally
and/or federally protected rights. This Court has consistently held that
religious organizations are not “above the law” and are subject to civil
litigation in contexts like tort claims thereby precluding this Court from
exercising jurisdiction before a “final judgment” could be obtained in the
trial court. See, e.g., Watson v. Jones, 13 Wall. 679, 728 (1871); Minersville
School Dist. Bd. of Ed. v. Gobitis, 310 U.S. 586, 594-595 (1940); Prince v.
Massachusetts, 321 U.S. 158, 166-71 (1944); United States v. Ballard,
322 U.S. 78, 86 (1944). This Court has further refused to disturb state
appellate court decisions in tort cases against church organizations denying
certiorari review. See, e.g., Moses v. Diocese of Colo., 863 P.2d 310
(Colo. 1993), cert. denied, 511 U.S. 1137, 114 S. Ct. 2153, 128 L. Ed. 2d
880 (1994); Bear Valley Church of Christ v. DeBose, 928 P.2d 1315
(Colo. 1996), cert. denied, 520 U.S. 1241(1997); Kenneth R. v. Roman
Catholic Diocese of Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791
(1997), cert. denied, 520 U.S. 1248 (1997).
5. See Petitioners’ Appendix C, pp. Sa-13a and Appendix D,
pp. 14a-22a.
8
decision, with knowledge of prior molestations, allowing
Father John Doe to be involved in secular conduct which
harmed unsuspecting third parties.
The Petitioners apparently seek review of this case under '
the third Cox Broadcasting exception alleging that the
“federal claim has been finally decided, with further
proceedings on the merits in the state courts to come, but
in which later review of the federal issue cannot be
had, whatever the ultimate outcome of the- case.”
Cox Broadcasting, 420 U.S. 469, 483 (1975). Such reasoning
is misplaced because the Petitioners have a just remedy by
direct appeal of any adverse final judgment to the Oklahoma
Supreme Court and ultimately this Court in the event that
Respondents prevail. Respondents’ claims against Petitioners
do not seek to invade any of Petitioners’ beliefs which are
purely religious and involve any sincerely held religious
belief. Respondents’ claims are not analogous to free speech
or press, federal pre-emption, state licensure or commerce
Clause, free association, and/or “minimum contacts” cases
because Respondents’ do not seek to restrict Petitioners’
religious beliefs, restrict their free exercise of such religious
beliefs nor do Respondents seek to force Petitioners to
exercise their beliefs in any particular way thereby requiring
extraordinary or emergency relief.° Respondents’ claims of
6. Petitioners cite Nebraska Press Ass'n v. Stuart, 423 U.S. 1327,
1329-1330 (1975) as authority that allowing Respondents’ claims to
go forward would “not only chill, but irreparably harm” Petitioners’
constitutional rights. Stuart was a free speech case wherein the Court
found that the restraint on the press was improper due to the nature of
the information sought to be released in the press. The issues in Stuart
did not involve tort claims an? awempis !9 discover evidence to prove
such claims. Petitioners furtner cite North Dakota Pharmacy Bad. v.
Snyder's Stores, 414 U.S. 156, 161 n.4 (1973) as some justification to
prevent the Respondents’ case from proceeding to resolution in the state
courts because the state courts had decided their jurisdiction erroneously.
Snyder's Stores, a non-tort case, involved an attempt by Snyder’s Stores
(Cont'd)
OSs STP RUNNER ORE Ty neonne-e .
9
sexual molestation are clearly actionable under Watson and its
progeny and Oklahoma law because they complain of tortious
conduct which is outside of any sincerely-held religious belief
or doctrine thereby precluding special review. Petitioners’
allegation of “constitutional deprivation” running wild by
allowing Respondents to discover evidence of Petitioners’
knowledge, conspiracy, concealing and cover-up of Father John
Doe’s abhorrent behavior in order to prove Respondents’ case
is wholly without merit. The issues in this case relate to the
Petitioners’ tortious conduct, not their beliefs. Such tortious
conduct, if proven, is not protected under the cloak of the First
Amendment, and Petitioners have cited no binding authority to
justify such protection or the invocation of this Court’s
jurisdiction under 28 U.S.C. § 1257.
This Court’s decision in Cox Broadcasting Corp. v. Cohn,
420 U.S. 469 (1975) does not warrant review of this case as an
exception to the “final judgment” rule of 28 U.S.C. § 1257.
The “federal issue is conclusive” of the Cox Broadcasting Corp.
exceptions to the “final judgment” rule is inapplicable in this
case because this Court clearly intended such exception to be
utilized in cases where a litigant’s recourse is limited at the
state level or where the statute at issue on its face conflicts with
constitutionally protected freedoms.’ This Court has never held
that religious organizations are above the law and cannot be
subjected to state tort laws and thé discovery laws necessary
(Cont'd)
to obtain licensure to operate a pharmacy which was denied by the
state board of pharmacy. Snyder's Stores had no alternative but to seek
the intervention of this Court after exhausting its state law remedies.
7. This Court's review of cases under this category includes cases
in which freedom of the press and criminal, jeopardy are involved.
Mills v. Alabama, 384 U.S. 214 (1966). In Mills, the state sought criminal
penalties against a publisher for printing opinions about candidates for
election on election day. This Court held that the state court decision
was final for purposes of this Court’s jurisdiction because of the clear
violation of the freedom of the press embodied in the Alabama statute
“t issue and federal pre-emption of state law .
10
for litigants to prove such claims. Respondents’ claims are not
barred by the First Amendment and such claims are not those
contemplated by this Court in the “federal issue is conclusive”
exception to the “final judgment” rule.
Petitioners’ attempts to bring this case under the “federal
issue survival regardless of the state court outcome” exception
to the “final judgment” rule under Cox Broadcasting Corp. are
again misplaced because Respondents claims and their right to
proceed will only further, not erode, federal policy. Petitioners
again rely on cases in which federal pre-emption of state law,
free speech, or clearly religious beliefs and uniquely religious
practices were at issue.*® Petitioners fail to cite any authority in
which religious organizations facing secular courts on tortious
claims and damages have prevailed under purely First
Amendment protections because there is not such authority
binding on this Court.’ For this Court to have so held in the past
would sanction church sponsored torts such as priestly child
8. Petitioners erroneously rely upon N.L.R.B. v. The Catholic
Bishop of Chicago, 440 U.S. 490 (1979) as the foundation for an absolute
immunity of church entities from civil discovery and judicial scrutiny.
The primary issue in Catholic Bishop was whether the National Labor
Relations Act applied to union organizing in parochial schools, again a
non-church tortious conduct case.
9. Petitioner’s cite the following “minimum contacts” cases as
authority for this Court’s exercise of jurisdiction where no trial on the
merits had occurred but where there may be a constitutional bar to
jurisdiction. Shaffer v. Heitner, 433 U.S. 186 (1977); Kulko v.
California Superior Court, 436 U.S. 84, 86 (1978); Rush v. Savchuk,
444 U.S. 320 (1980); World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286 (1980). However, all four of these cases are
distinguishable because they all involve the critical issue of
jurisdiction of a court over a non-resident in which this Court has
consistent!y applied the “minimum contacts” requirement under
International Shoe Co. v. Washington, 326 U.S. 310 (1945).
In all of these cases, this Court exercised jurisdiction to protect
litigants’ rights under the Due Process Clause of the Fourteenth
Amendment and this Court’s prior holdings in /nternational Shoe
Co., circumstances unrelated to the instant case.
elle
—~
1]
molestation which this Court has clearly stated are against
public policy and not intended to be protected under the First
Amendment.'° Respondents have alleged facts to support
non-constitutionally protected claims against the abuser and
his employer including tortious actions of a priest acting in
the course and scope of his employment in which his
employer had notice of such prior deviate sexual behavior
and of the priest’s propensity to continue such conduct
together with his employers’ complete failure, despite notice,
to take action to prevent such conduct. As this Court has
previously recognized, religious organizations are not granted
“blanket immunity from suit” under the cloak of the First
Amendment."' Further, this Court has never held that when
“otherwise prohibitable conduct is accompanied by religious
convictions, not only the convictions but the conduct itself
must be free from governmental regulation.” Moreover, this
Court has never held that an individual’s religious beliefs
excuse him from compliance with laws “prohibiting conduct
that the State is free to regulate.”'? Likewise, this Court has
10. See e.g., Watson v. Jones, 13 Wall. 679, 728 (1871);
Prince v. Massachusetts, 321 U.S. 158, 166-71 (1944): United States
v. Ballard, 322 U.S. 78, 86 (1944).
11. United States v. Ballard, 322 U.S. 78, 86 (1944);
See, e.g., N.H. v. Presbyterian Church, 1999 OK 88, at paragraph
27, 998 P.2d 592 (Okla. 1999) wherein the Oklahoma Supreme Court
carefully limited its intrusion into religious freedom cases.
12. Emp. Div., Dept. Human Resources of Oregon v. Smith, 494
U.S. 872, 882 (1990).
13. Jd. at 879. As this Court stated in Smith, “On the contrary,
the record of more than a century of our free exercise jurisprudence
contradicts that proposition.” As described succinctly by Justice
Frankfurter in Minersville School Dist. Bd. of Ed. v. Gobitis, 310
. U.S. 586, 594 -595 (1940):
Conscientious scruples have not, in the course of the long
struggle for religious toleration, relieved the individual
from obedience to a general law not aimed at the promotion
(Cont'd)
12
declined to interfere in state court proceedings simply
because religion or religious entities are litigants.'*
Finally, Petitioners argue under Cox Broadcasting Corp.
the erroneous allegation that any lower Oklahoma court
determination of the non-federal issues of this case could
preclude review of the federal issue subsequently on appeal
thereby requiring certiorari review qualifying such review
under the Cox Broadcasting Corp. exceptions to the “final
judgment” rule.'* Petitioners alleged that “adjudicating the
(Cont'd)
or restriction of religious beliefs. The mere possession of
religious convictions which contradict the relevant
concerns of a political society does not relieve the citizen
from the discharge of political responsibilities (footnote
omitted).
We first had occasion to assert that principle in Reynolds v. United States,
98 U.S. 145 (1879), where we rejected the claim that criminal laws
against polygamy could not be constitutionally applied to those whose
religion commanded the practice. “Laws,” we said,
are made for the government of actions, and while they
cannot interfere with mere religious belief and opinions,
they may with practices. . . .Can aman excuse his practices
to the contrary because of his religious belief? To permit
this would be to make the professed doctrines of religious
belief superior to the law of the land, and in effect to permit
every citizen to become a law unto himself.
Id. at 166-167. Smith, 494 U.S. at 889.
14. Jd. at 879-889 and the cases collected therein.
15. Petitioners cite Nat'l Soc. Party of America v. Village of Skokie,
432 U.S. 43 (1977) as authority for “special attention” this Court gives
to First Amendment issues regarding finality-of judgment. However,
Village of Skokie involved a state trial court’s injunction blocking the
National Socialist Party of America from marching, walking or parading
in their uniforms or otherwise displaying the swastika, and from
distributing pamphlets or displaying materials inciting or promoting
hatred against Jews or persons of any faith, ancestry or race, the state
highest court’s denial of the group’s motion for leave for an expedited
(Cont'd)
?
:
me
+
;
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z
%
13
proper scope of First Amendment protections as a ‘federal
policy’ merits the application to the exception of the general
‘finality’ rule.”'® However, this Court’s analysis in such cases
involves a First Amendment challenge to the facial validity of a
law or statute including criminal prosecution laws involving
freedom of the press and the possession of certain types of
printed matter.'’ Such review also involves cases where the facial
validity of a law or statute which may infringe on the freedom
of the press where such statutes create an affirmative duty to
print and disseminate certain printed matter."*
(Cont'd)
appeal, and this Court’s finding that such denial of appellate review
was in effect a “final judgment.” This Court found that it involved
“a right ‘separable from and collateral to’ the merits (citations omitted).”
Id. at 44. To deny petitioners review would effectively deny them their
right of assembly during the trial and appellate phase of the case. In the
instant case, this Court’s denial of review would not prevent Petitioners
from exercising their religious beliefs in any manner. Petitioners
responses to Respondents’ discovery, the conduct of litigation, and
ultimate disposition will not interfere in the Petitioners’ purely
ecclesiastical matters. Respondents do not seek to impose their religious
beliefs or practices on Petitioners. Respondents simply seek the truth
as to why Petitioners allowed their priest’s abhorrent conduct to be
visited upon them.
16. Petitioners’ Petition at pp. 13 (citing Ft. Wayne Books, Inc. v.
Indiana, 489 U.S. 46 (1989)).
17. Ft. Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57 (1989).
In this case, this Court assumed jurisdiction without a final judgment
under the Cox Broadcasting Corp. fourth exception stating the such
review, “[i]nvolves a First Amendment challenge to the facial validity
of the Indiana RICO statute. . . .” No such statute or law is at issue in
the instant case. Moreover, tort claims against religious entities do not
create a challenge under the First Amendment to the facial validity of
such laws absent clear evidence of impingement on religious beliefs.
Respondents have created no such impingement.
18. Petitioners incorrectly rely upo.. Miami Herald Publishing Co.
v. Tornillo, 418 U.S. 418 (1973) as standing for the proposition that
(Cont'd)
14
Il.
THE COURT SHOULD DENY CERTIORARI BECAUSE
NEITHER A CHURCH ORGANIZATION NOR ITS
MINISTER IS EXEMPT FROM TORT LIABILITY FOR
SECULAR TORTIOUS CONDUCT THAT DOES NOT
BURDEN THE FREE EXERCISE OR ESTABLISHMENT
CLAUSES OF THE FIRST AMENDMENT
A. Church Organizations and Ministers are not immune
from tort liability.
The First Amendment does not bar claims for the tortious
conduct of church organizations and their ministers for direct
and vicarious liability. Courts have consistently held that church
organizations and members of the clergy cannot, in all
circumstances, use the shield of the First Amendment as
protection and as a basis for immunity from a civil tort
law suit.'® The Petitioners’ remedy in the event of an adverse
judgment on the Respondents’ secular claims is by direct
appeal to the Oklahoma Supreme Court and such remedy is
not manifestly unjust or inadequate.
(Cont'd)
mere involvement with First Amendment issues would create an “uneasy
and unsettled constitution of posture could only harm the operation of
a free press” (Petitioners Petition at pp. 13). Tornillo involved a Florida
statute which on its face required a newspaper to affirmatively print
replies to editorials critical of a person's candidacy for public office.
This was an injunction and declaratory judgment case which this Court _
reviewed without a full trial on the merits. This Court reversed the Florida
Supreme Court's ruling upholding the validity of the mandatory reply
finding that the statute was invalid on its face. Petitioners have
demonstrated no such facial invalidity of any law or statute in the instant
case.
19. See note 22, infra and the cases cited therein. See also N.H. v.
Presbyterian Church, 1999 OK 88, at paragraph 27, 998 P.2d 592
(Okla. 1999); Destafan v. Grabrian, 763 P.2d 275 (Colo. 1988) and
Erickson v. Christenson, 781 P.2d 383.(Or. App. 1989) (Church directly
liable for failure to properly supervise Priest in both cases).
1S
Constitutional protection of religious beliefs does not
shield a religious institution from all tort liability.?° Despite
the erroneous conclusions reached by Petitioners, this Court
has recognized that actions and conduct in the context of
religious freedoms cannot be absolutely protected.
The First Amendment has a dual aspect. It not
only “forestalls compulsion by law of the
acceptance of any creed or the practice of any
form of worship” but also “safeguards the free
exercise of the chosen form of religion.” Cantwell
v. State of Connecticut, 310 U.S. 296, 303 (1940).
“Thus the Amendment embraces two concepts, —
freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the second
cannot be.” Id. at 304. (emphasis added).*'
While the Respondents agree that this Court has previously
recognized that the secular courts shall not interfere with
purely ecclesiastical matters, this Court has also refused to
recognize an absolute bar to claims where religion is
involved.” The sexual molestation of a child by a Catholic priest
certainly rises to the level of the “gravest [of] abuses,
endangering paramount interests, [to] give occasion for
permissibie limitation” on religious freedom.”
This Court has long held that conduct is not the “exercise
of religion” unless such conduct is mandated by a sincerely
20. Bladen vy. First Presbyterian Church, 1993 OK 105
(Okla. 1993) at paragraph 12.
21. United States v. Ballard, 322 U.S. 78, 86 (1944);
See also Minersville v. Gobitis, 310 U.S. 586, 594-95 (1940); Sherbert
v. Verner, 374 U.S. 398 (1963); Nutt v. Norwich Roman Catholic Diocese,
921 F. Supp. 66, 73 (D. Conn. 1995).
22. See, e.g., Watson v. Jones, 13 Wall. 679, 728 (1871); Prince v.
Massachusetts, 321 U.S. 158, 166-71 (1944); United States v. Ballard,
322 U.S. 78, 86 (1944).
23. Sherbert v. Verner, 374 U.S. 398, 406 (1963), quoting Thomas
v. Collins, 323 U.S. 516, 530 (1945).
16
held religious belief.** The Petitioners have wholly failed to
establish that any of Respondents’ claims arise from the conduct
of any sincerely-held religious belief or practice and have further
failed to establish any burden upon any sincerely-held
fundamental-law right or religious belief or practice. Despite
Petitioners’ allegations to the contrary, there exists no
constitutional or ecclesiastical privilege involved in the
protection of our children from the evil of sexual offenders
cloaked in the robes of the church.** Moreover, the party
24. Frazee v. Employment Security Dep't, 489 U.S. 829, 834
(1989). (To prove violation of free exercise clause, litigant must show
that burdened conduct “was based on a sincerely held religious belief”);
Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439,
450 (1988) (Law does not burden free exercise rights unless it has a
“tendency to coerce (the priest or church official) into acting contrary
to their religious beliefs”); Hobbie v. Unemployment Appeals Comm'n,
480 U.S. 136, 141 (1987) (Burdened conduct must be “mandated by
religious belief” to be protected by free exercise clause) (quoting Thomas
v. Review Bd., 450 U.S. 707, 717-718 (1981); Wisconsin v. Yoder, 406
U.S. 205, 215 (1972) (“to have protection of the Religion Clauses, claims
must be rooted in religious beliefs”); Sherbert v. Verner, 374 U.S. 398,
404 (1963).
25. Petitioners cite the following non-binding cases for the
erroneous proposition that, “A religious organization has immunity from
civil discovery and judicial scrutiny regarding placement of clergy.”
[Petitioners’ Brief at pp. 9] First United Church v. White, 571 A.2d 790,
792 (D.C. App. 1990) involved a denial of a ministers’ claims for
employment benefits against the church after his ecclesiastical
endorsement was withdrawn based on the church's internal governance
mechanisms. The court in White refused to review the church's decisions
because it deemed the affirmative acts of the church representatives to
be matters of church government and the exercise of its decision making
in ecclesiastical disputes. However, the court did recognize certain
“limited exceptions” to a civil court’s jurisdiction of church matters
and refused to find any absolute “immunity” from civil discovery and
judicial scrutiny regarding the placement of clergy or clerical torts.
In Rayburn v. General Conf. Of Seventh-Day Adventists, 772 F.2d 1164,
(Cont'd)
17
claiming a constitutional violation has the burden of proving
that violation. This Court has resolved the issue of the state’s
compelling interest to protect children versus any burden on
the separation of church and state in favor of the protection
of children.** Under all of this Court’s well-established
freedom of religion precedents, the First Amendment
provides no defense to tort liability unless the specific
tortious acts were actually “mandated by religious belief.”
Petitioners have the burden of proving that tortious conduct
and religious belief are “inseparable and interdependent.”
This Court’s refusal to grant certiorari will adhere to this
Court’s balancing test of the state’s interest in protecting the
children and their welfare against church sanctioned sexual
abuse cloaked in freedom of religion defenses.
No sincerely-held religious beliefs either mandated or
prohibited the specific tortious acts of Petitioners or Father John
Doe. There is no religious mandate about keeping secret Father
John Doe’s sexual abuse of Respondents. There is no mandate
or prohibition about deceiving and manipulating vulnerable
parishioners. Petitioners have the burden to present free exercise
and/or establishment defensive evidence at trial that the tortious
conduct and religious belief are interdependent.”? Whether the
(Cont'd)
1171 (4th Cir. 1985) cited by Petitioners, the Court stated that,
“[o]f course churches are not — and should not be — above the law.
Like any other person or organization, they may be held liable for their
torts and upon their valid contracts.” Rayburn was a case brought by a
woman seeking a pastoral position in which she alleged sexual and
racial discrimination against the church entity. The court refused to
examine the hiring criteria of the church based on First Amendment
grounds. Rayburn did not involve tort claims raised against the church
entity.
26. Prince v. Massachusetts, 321 U.S. 158, 166-71 (1944).
27. Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141
(1987).
28. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
29. Id.
18
beliefs are sincerely-held religious beliefs is a legal question to
be determined at trial.*° Any claim that the tortious conduct is
“religiously motivated” fails to meet the interdependence
burden.
The First Amendment provides protection for religious
beliefs, but only limited protection is afforded to acts, even acts
caused by or resulting from those beliefs. Acts which are in
violation of proper laws protecting society are subject to
regulation and review even if prompted by religious beliefs.*'
In the instant case, no one claims that a priest’s sexual contact
with a minor is an act motivated by religious belief. Nor can
the prevention of child abuse be characterized as anything but a
secular concern. Such conduct is an abomination against state
law, human decency, and is not entitled to constitutional
protection.
A review of all of the cases cited by Petitioners does nothing
to refute the proposition that this dispute is purely secular and
not involving matters of religious belief or practice which would
result in any entanglement with religious freedoms. The
Petitioners have further misrepresented the law to this Court by
cleverly omitting the key words, “church property,” at the
ellipsis in their citation to this Court’s decision in
Presbyterian Church v. Hull Church, 440, 449 (1969) on page
14 of their petition.*? As this Court is keenly aware,
Presbyterian Church was a church property dispute case and
not a church related tort case. There is a long line of cases
involving hierarchical churches in which this Court has
consistently left church property disputes to be decided in
30. United States v. Seeger, 380 U.S. 163 (1965).
31. Watson v. Jones, 13 Wall. 679, 728 (1871); Intercommunity
Center for Justice and Peace v. INS, 910 F.2d 42, 44 (2nd Cir. - Md,
1990); Braunfeld v. Brown, 366 U.S. 599 (1961).
32. Petitioners incorrectly cited this case in their petition.
The proper citation is Presbyterian Church v. Hull Church, 393 U.S.
440 (1969).
19
the ecclesiastical arena.*’ Moreover, Petitioners’ citations on
page 14 of their petition erroneously attempt to draw the
conclusion that secular courts have absolutely no role in cases
involving clergymen. Such conclusion is simply untrue and
disingenuous.
This Court went so far in Kedroff v. St. Nicholas
Cathedral, 344 U.S. 94, 116 (1952), to note that, “[flreedom
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.” (Italics added).
Respondents submit that placing a priest with a sordid history
of deviate sexual behavior in charge of a parish with children
raises, at a minimum, issues of possible improper methods
of choice, retention and/or supervision utilized by Petitioners’
church officials.
Further, Petitioners have simply misconstrued and
misunderstood this Courts’ prior decisions as being an
imagined “absolute bar” to secular court regulation of some
church related torts.** This Court has never sanctioned such
33. See, e.g., Watson v. Jones, 80 U.S. (13 Wall.) 679, 727-729
(1871) (Dispute as to ownership of church property), Gonzalez v.
Roman Catholic Archbishop, 280 U.S. 1, 16 (1929) (Whether the
petitioner is legally entitled to be appointed the chaplain, and whether
he shall recover the surplus income accrued during the vacancy),
Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church,
344 U.S. 94, 113-115, 120-121 (1952) (Action brought in a state to
determine the right to the use and occupancy of a church), later
opinion, Kresshik v. St. Nicholas Cathedral of the Russian Orthodox
Church, 363 U.S. 190 (1960) (Certiorari was granted to review
dispute regarding property rights conferred under canon law to use
and occupy church), and Serbian Orthodox Diocese v. Milivojevich,
426 U.S. 696, 723 (1976) (Dispute over control of diocesan property
and assets).
34. Petitioners repeated misconstruction and attempt to draw a
bright line demarcation between secular cases and cases which have
(Cont'd)
20
a position. The Oklahoma Supreme Court has followed this
Court’s decisions on the issue of church related torts,
specifically reserving for the proper case the question of
church related sexual abuse in instances where church
officials’ knowledge of the abuse is alleged and ultimately
proven.*°
(Cont'd)
any relation to churches and/or religion is misplaced. On page 14 of
their Petition, Petitioners cite Watson v. Jones, 80 U.S. (13 Wall.) 679,
727-729 (1871) (Dispute as to ownership of church property); Gonzalez
v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929) (Whether the
petitioner is legally entitled to be appointed the chaplain, and whether
he shall recover the surplus income accrued during the vacancy); Kedroff
v. St. Nicholas Cathedral of the Russian Orthodox Church, 344 U.S.
94, 113-115, 120-121 (1952) (Action brought in a state to determine
the right to the use and occupancy of a church); later opinion, Kresshik
v. St. Nicholas Cathedral of the Russian Orthodox Church, 363 U.S.
190 (1960) (Certiorari was granted to review dispute regarding property
rights conferred under canon law to use and occupy church), and Serbian |
Orthodox Diocese v. Milivojevich, 426 U.S. 696, 723 (1976) (Dispute
over control of control of diocesan property and assets) as apparent
precedent that “civil courts must accept as conclusive the decisions of
highest ecclesiastical judicatories of a hierarchical church in religious”
matters concerning clergymen.” (Petitioners’ Petition at pp. 14). All of
these cases involved, in either a direct or indirect manner, church
property disputes in hierarchical churches which all have internal
governance rules and courts for the internal adjudication of disputes as
to property ownership. None of these cases involved tortious sexual
acts of clergy committed against children of the church or superior
inaction when faced with notice of the cleric’s history such abhorrent
behavior. While these cases are instructive in that they all note certain
limitations on secular courts in certain purely ecclesiastical cases, these
cases are not dispositive of Respondent’s claims.
35. Petitioners again seek to divert attention from the instant
case of church related torts where church officials’ notice of the
abuse is evident by citing general ecclesiastical language from
several Oklahoma Supreme Court cases. Bladen v. Presbyterian
Church of Sallisaw, 857 P.2d 789 (Okla. 1993); Guinn v. Church of
(Cont'd)
21
Mere assertion that a law burdens some practices that
might conceivably be religious has never sufficed to show a
violation of the free exercise clause. The party asserting such
a defense has the burden to show with record evidence that
his or her conduct is mandated by a sincere religious belief.
The Free Exercise Clause of the First Amendment does not
grant churches or church organizations immunity from being
sued in civil courts.*’
B. Facially neutral laws require no compelling state
interest First Amendment analysis.
The torts at issue in this case are neutral laws of general
applicability, both on their face and in their application.
It is not the status of “priest” that creates the duty, it is the
act of the person in a position of superiority offering help to a
person who is vulnerable such that the person in the position of
superiority assumes a duty to act in good faith. An identical
(Cont'd)
Christ of Collinsville, 775 P.2d 766 (Okla. 1989); Hadnot v. Shaw,
826 P.2d 978 (Okla. 1992); and N.H. v. Presbyterian Church,
(U.S.A.), 99 OK 88, 998 P.2d 592 (Okla. 1999) all involved church
matters but lacked the unique facts of the instant case where, like
Respondents herein, there were allegations of tortious acts, a long
history of the priest’s sexual misconduct, the church officials’
knowledge of such history of sexual misconduct, and their failure
to warn and attempt to prevent it. Respondents conceded that there
are areas where ecclesiastical matters are outside the jurisdiction of
secular courts. However, the instant case is simply not one of those
cases.
36. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).
37. Ohio Civil Rights Comm'n v. Dayton Christian Schools,
Inc., 477 U.S. 619 (1986). Assuming that the Petitioners were able
to establish religious motivation, the Free Exercise Clause would
not bar the Oklahoma Court from enforcing generally applicable
neutral rules that prohibit or burden even religiously motivated
conduct. See Employment Div. Dep’t of Human Resources v. Smith,
494 U.S. 872 (1990). :
38. Id.
22
result would have been reached in this case if the Church had
been a non-religious employer, such as a day care center or a
hospice, whose dangerous employee provided damaging care
or counseling to a vulnerable person. None of the Respondents’
claims were predicated on actions motivated by religious belief.
The Respondents’ negligence claims are based on prior notice
to Petitioners of the dangers Father John Doe posed. The
Respondents’ fiduciary duty claims are based, not on how Father
- John Doe was treated, but on how the Respondents were treated
by entities that sought and then betrayed their trust. The
Respondents outrageous conduct claims are based on damaging
actions taken by Petitioners and/or Father John Doe with full
knowledge of the vulnerability of the Respondents.
Further, the neutral common law tort of breach of fiduciary
duty imposes upon the Petitioners, who occupied a position of
superiority, a duty to act in good faith outside of any religious
belief. Breach of this duty imposes civil liability upon the
Petitioners.*? The “status” of the clergyman is not clergy/non-
clergy but is simply a person in authority who seeks a special
trust that another has the right to rely on the fiduciary.
Moreover, this Court is well schooled in the proper
analytical test for determining whether to invoke certiorari
jurisdiction in First Amendment free exercise cases.
Any conceivable burden on the free exercise of religion as argued
by the Petitioners is outweighed by the compelling state
interest in preventing the sexual abuse of children and
ensuring the compliance with state reporting laws” designed
to reveal the existence of such abuse together with a citizen’s
right to the open courts of Oklahoma‘! to seek redress,
thereby making assumption of jurisdiction by this Court in
this case inappropriate. It is incredible that Petitioners
39. See, e.g., Moses v. Diocese of Colo., 863 P.2d 310 (Colo. 1993),
cert. denied, 511 U.S. 1137 (1994).
40. 21 OS. § 846.
41. Ok. Const. Art. 2, § 6.
23
actually argue that a jury will be asked to use a “reasonable
bishop” standard in determining whether the offender in the
instant case was properly supervised. The better reasoned
analysis is whether church officials in the instant case
exercised ordinary care in determining whether Father John
Doe, a priest with a sordid history of sexually deviate
behavior, should be entrusted in the fiduciary capacity as
pastor in charge of a parish. Retaining the priest and placing
him in a position giving him intimate access to young
children in a counseling setting, when the Petitioners had
direct knowledge that the priest’s history placed those
children at risk, is void of any sincerely held religious belief.
The same analysis would apply if the Petitioners had allowed
Father John Doe to drive buses filled with parishioners in
situations where the Church knew that the priest had a history
of driving carelessly. Petitioners’ decisions to allow clergy
involved in secular conduct to harm unsuspecting third parties
is not protected.
The holding of the Oklahoma Supreme Court is
consistent with every decision of this Court. It presents no
unsettled or important questions of federal law therefore
requiring that this Court deny Petitioners’ petition.
C. Religious practice may be burdened to protect society.
Recently, this Court reaffirmed its rule that religious practice
may be burdened in certain cases.
[A] law that is neutral and of general applicability
need not be justified by a compelling governmental
interest even if the law has the incidental effect of
burdening a particular religious practice.®
Neutrality and general applicability are interrelated,
and, as becomes apparent in this case, failure to
satisfy one requirement is a likely indication that
‘the other has not been satisfied. A law failing to
42. Citing Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.S. 872 (1990).
24
satisfy these requirements must be justified by a
compelling governmental interest and must be
narrowly tailored to advance that interest.”
This Court’s recent decisions demonstrate that one need not
reach the compelling state interest test as advanced by Petitioners
if the law is neutral and of general applicability.“ Moreover,
mere civil liability exposure, where it is equally and neutrally
applied, does not make a law, be it statutory or common law,
invalid even though it may touch religion. Petitioners do not
argue that the potential liability they face for their priest's actions
is not facially or otherwise neutral. Petitioners attempt to argue
that “subtle departures from neutrality” justify this Court to
grant relief on the basis that their religious beliefs will be
“covertly suppressed,’ Petitioners and their conduct, or lack
43. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,
531-532 (1993).
44. See, e.g, Fowler v. Rhode Island, 345 U.S. 67 (1953)
(Municipal ordinance applied in an unconstitutional manner when used
to prohibit preaching in a public park by Jehovah's Witness but to permit
preaching at Catholic mass or Protestant service), Larson v. Valente,
456 U.S. 228 (1982) (State statute that treated some religious
denominations more favorably than others was deemed to violate the
Establishment Clause). These cases were not of general application
and not neutral to all religious beliefs.
45. Petitioners’ petition at pp. 18. Petitioners don’t actually make
any type of direct “covert suppression” argument deciding instead to
cloak their arguments in terms of “reasonable bishop” and allegations
that adverse results in cases like those of Respondents will “chill” the
exercise of religion. This Court has consistently held that,
The First Amendment’s guarantee that “Congress shall
make no law . . . prohibiting the free exercise” of religion
holds an important place in our scheme of ordered liberty,
but the Court has steadfastly maintained that claims of
religious conviction do not automatically entitle a person
to fix unilaterally the conditions and terms of dealings with
the Government. Not all burdens on religion are
unconstitutional.
Bowen v. Roy, 476 U.S. 693, 702 (1986).
25
thereof, are not “targeted” but are simply being scrutinized as
any citizen would be under the same or similar circumstances.
The object of the torts of negligence and breach of fiduciary
duty is to provide compensation to plaintiffs injured by the
tortious conduct of another. The torts are religion neutral and,
even assuming the conduct at issue had been tied to religious
belief, the First Amendment would be no defense pursuant to
this Court’s holding in Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U.S. 872 (1990). No one in our
society may simply sit back, accept an apology (Petitioners call
it “grace”), continually return the “fox to the henhouse,” and
not expect there to be damage and loss due to their own naivete.
This Court should not accept such position because to so hold
places our society's children at risk.”
Citizens and those in authority, be they religious or agnostic,
are held to the same standards in our ordered society, when
placed on notice of prior bad acts committed against children,
to act to protect children from foreseeable harm. The founding
fathers separated church from state but failed to elevate church
Over state recognizing that such elevation would violate our
beliefs in equality for all under law. This Court’s holdings set
forth in this response clearly illustrate that there are guiding
principles available to courts to use in determining whether
clergy misconduct cases are constitutionally protected. The
Oklahoma Supreme Court has reviewed and followed this
Court’s rulings in deciding several First Amendment cases and
expressly reserving the very issues at bar in this case for a case
like Respondents to set forth the appropriate standards for cases
in Oklahoma consistent with this Court’s precedents.*”
46. Petitioners Biblical references at pp. 19 and 20 of their Petition
do not alter the fact that this Court has historically limited the rights of
a “person to fix unilaterally the conditions and terms of dealings with
the Government. Not all burdens on religion are unconstitutional.”
Bowen v. Roy, 476 U.S. 693, 702 (1986).
47. Bladen v. Presbyterian Church of Sallisaw, 857 P.2d 789
(Okla, 1993); Guinn v. Church of Christ of Collinsville, 775 P.2d 766
(Cont'd)
26
D. Total separation between church and state is not
possible.
Total separation between church and state is not possible
in our society in an absolute sense and some governmental
involvement is inevitable. The line of separation is not absolute
but “is a blurred, indistinct and variable barrier depending on
all the circumstances of a particular relationship.” Although
the Lemon case involved the issue of state support to church-
related elementary and secondary schools, this Court recognized
that absolute abstention from state involvement with church-
related entities does not necessarily violate the Establishment
Clause of the First Amendment.
This Court has denied review in recent similar cases where
there are allegations of sexual misconduct between a minister
and the laity, and this Court has refused to allow protection of
such ministers under any reasonable construction of the First
Amendment.” Respondents submit that increased supervision
(Cont'd)
(Okla. 1989); Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992); and
N.H. v. Presbyterian Church, (U.S.A.), 99 OK 88, 998 P.2d 592
(Okla. 1999). Petitioners surely do not suggest that the Oklahoma
Supreme Court is a court of rogues set out to emasculate the First
Amendment. In all of these cases, the Oklahoma Supreme Court has
carefully analyzed the Constitution, its history, guiding rules from this
Court, and its own precedents in deciding past First Amendment cases.
Petitioners fear of potential financial liability does not justify
intervention of this Court without more.
48. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971) citing Zorach
v. Clauson, 343 U.S. 306, 312 (1952) and Sherbert v. Verner, 374 U.S.
398, 422 (1963) (Harlan, J., dissenting).
49. Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).
50. Moses v. Diocese of Colo., 863 P.2d 310 (Colo. 1993),
cert. denied, 511 U.S. 1137, 1148S. Ct. 2135, 128 L. Ed. 2d 880 (1994);
Bear Valley Church of Christ v. DeBose, 928 P.2d 1315 (Colo. 1996),
cert. denied, 520 U.S. 1241; Kenneth R. v. Roman Catholic Diocese of
Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791 (1997), cert. denied, 520
U.S. 1248 (1997).
27
of Father John Doe or the termination of his employment by
Petitioners prior to his molestation of Respondents would not
have violated any religious doctrine nor inhibited any religious
practice.*' Further, religious entities have some duty to prevent
injuries inflicted by persons in their employ whom they have
reason to believe will engage in injurious conduct.** Simply,
this Court has been asked to review these matters in the past
and has declined to do so. Respondents submit that Petitioners
fail to make an adequate case for revisiting these issues again.
Further, the Respondents’ claims are purely secular in that
subsequent to actual knowledge of a past history and treatment
for ephebophilia, a contract for employment between the
Petitioners was created, Respondents were sexually molested
during this period during the offending Priest’s employment
with Petitioners, Petitioners tolerated such abuse, and failed to
act to disclose such abuse, ultimately failing to prevent it. During
this period of time, Father John Doe was sued in a Michigan
State court for essentially the same claims of sexual molestation
of children as in the instant case.
While courts have held that the Code of Canon Law is
admissible to establish the duty of obedience of the Priest to
the Bishop, the scope of the relationship between the Bishop
and the Priest is relevant to the essence of whether the Diocese
negligently supervised the Priest.® It is not necessary for the
51. See, e.g., Jimmy Swaggart Ministeries v. Board of Equalization
of Cal., 493 U.S. 378 (1990) (Kenneth R. v. Roman Catholic Diocese of
Brooklyn, 229 A.D.2d 159, 654 N.Y.S.2d 791, 796 (1997), cert. denied,
520 U.S. 1248, 118 S. Ct. 413, 139 L. Ed. 2d 316 (1997).
52. See, e.g., Konkle v. Henson, 672 N.E.2d 450, 456 (Ind. App.);
L.L.N. v. Clauder, 203 Wis.2d 570, 552 N.W.2d 879 (1997); Erickson
v. Christenson, 99 Or. App. 104, 109, 781 P.2d 383, 386-387 (1989);
Gallas v. Greek Orthodox Diocese of N. & S. Am., 154 Misc.2d 494,
499-500, 587 N.Y.S.2d 82 (1991); Jones v. Trane, 153 Misc.2d 822,
830-831, 591 N.Y.S.2d 927 (1992).
53. Stevens v. Roman Catholic Bishop of Fresno, 49 Cal. App. 3d
877, 123 Cal. Rptr. 171 (1975).
28
Respondents to solely rely on this position because the contract
between the Petitioners is secular and not ecclesiastical.
Although the Petitioners may rely upon Canon Law on a
Bishop’s duty in selecting a Priest, once the Bishop has selected
the Priest, a contract is created to determine the work to be
. done, the individual to be assigned to a position, and the financial
arrangements for his employment. When the Priest is
incardinated, the civil courts are not expected to limit the
church’s choice of a religious representative and the
Respondents have not asked the Court to so act. Such a request
would potentially impinge on the church’s constitutional
protections. However, the courts recognize that the contract
created is secular and can be enforced.™
E. Foreseeable risk of harm to society in the selection,
supervision, and retention of clerics based on prior
notice of a cleric’s deviate sexual behavior mandates
secular liability.
The Respondents contend that, where there is foreseeable
risk of harm to others in selecting a new Priest with known
sexual misconduct, and when the church officials fail to warn
the public or adequately supervise such Priest’s activities in order
to reduce the risk of such harm, such lack of action does not
merit constitutional protection. In Kennedy v. Roman Catholic
Diocese of Burlington, a female parishioner brought a tort
action against the Diocese and the parish priest alleging the
priest had sexually abused her. The Diocese moved for
_ Summary Judgment. The court held, inter alia, that the “fact
that diocese controlled some activities of its priests, did not,
of itself, impose a legal duty to protect a parishioner from
sexual abuse by a priest absent some sort of notice that priest
might engage in sexual abuse of a parishioner. (Emphasis added).
54. United Methodist Church v. White, 571 A.2d 790, 796
(D.C. App. 1990).
55. 921 F. Supp. 231, 234 (D. Vermont, 1996).
29
However, foreseeability of risk remains a key
consideration. The fact that the Diocese may control
some activities of a priest, does not in itself, impose
a legal duty to protect the Plaintiff, absent some sort
of notice that Father Wysolmerski might engage in
the volitional criminal acts at issue. (emphasis
added)
Although the Plaintiff did not prevail in Kennedy, the court
Stated, as did the Oklahoma Supreme Court substantially in
N.H. v. Presbyterian Church*’, that:
[I]f hiring was done with knowledge that a
prospective employee had perverted sexual
proclivities, the institution might well be held
accountable.**
Respondents submit that their claims are not barred by any
reasonable construction of any First Amendment provision.
No amount of constitutional verbiage can characterize
church sponsored child abuse as a sanctioned religious right.
Priest sexual misconduct with minor children is not part of
church doctrine or belief but is part of the secular arena and
therefore not barred by any constitutional protections of religion.
Had the Petitioners acted with ordinary care in acting upon the
knowledge of the Priest’s history of criminal and immoral
tortious activity, such questions would not be before the Court.
The Respondents have not pled any “reasonable Bishop
standard” but seek solely to require those persons in authority
and their subordinates in any religious organization to act with
ordinary care. The Priest in this case was paid by the Petitioner
SPOOL FLEA LLL, LAELIA LE NENG, LIAS ELIE TIRE I NO Ay me I
: 56. See Rivers v. State, 133 Vt. 11, 14, 328 A.2d 398, 400 (1974);
: see also Restatement (Second) Torts § 317 (B) (ii), “A master is under
a duty to exercise reasonable care so to control his servant if he knows,
or should know, of a necessity and opportunity for exercising such
control.”
57. 1999 OK 88, at paragraph 27, 998 P.2d 592 (Okla. 1999).
58. Kennedy v. Roman Catholic Diocese of Burlington, 921
F. Supp. 231, 234 (D. Vermont, 1996).
30
Diocese as an employee, a secular act, to work in the everyday
world with it’s parishioners. The issue here is whether all
Petitioners acted with ordinary care in responding to the
widespread information within and outside of the religious
community that Priest John Doe had and was sexually molesting
minor children. A jury should be allowed to review such claims
to determine if Petitioners are liable for such actions and/or
inactions. This Court should therefore decline to assume original
jurisdiction of this case and allow the Respondents to have their
day in Court.
CONCLUSION
Wherefore, above premises considered, Respondents
respectfully request this Court to decline to assume jurisdiction
in this case and deny Petitioners Petition for Writ of Certiorari.
Respectfully submitted,
JOHN M. STUART
Counsel of Record
JAMES M. FRIEDA
STUART, FRIEDA & HAMMOND, P.C.
Court Plaza Building
1111 West Willow, Suite 100
Duncan, OK 73533
(580) 252-9033
Garvin A. ISAACS
Garvin A. Isaacs, INC.
Rainy Mountain Building
123 N.W. Eighth Street
Oklahoma City, OK 73102
(405) 232-2060
RANDALL R. LYLE
307 West Seventh Street
Suite 1800
Fort Worth, TX 76102
(817) 390-0303
Attorneys for Respondents
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