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Published online by Cambridge University Press: 24 April 2015
In our time there has occurred a plague of claims and law suits against clergy and churches as a result of alleged clergy wrongdoing. Many of these cases have to do with sexual misconduct. Knowing that the individual clergy are likely to have very limited financial resources, claimants have joined churches and church officials in their lawsuits under theories of negligent selection, negligent assignment, or negligent supervision of clergy. These negligence theories have led to pre-trial discovery requests for confidential church records and clergy personnel files. This has created a serious dilemma for the churches involved, and in particular for the Roman Catholic Church whose canon law mandates the non-disclosure of records kept in the church's secret archives. This article will focus on the conflict between the civil procedural rules creating a right to pre-trial discovery and the free exercise rights of a church to select, evaluate and assign clergy without fear of disclosure of confidential information relied upon in the process.
1. Hutchison v Luddy et al, Civ Div No 445 (Somerset Co Pa 1988)Google Scholar.
2. Id.
3. Id.
4. Hutchison v Luddy, 606 A2d 905 (Pa Sup Ct 1992)Google Scholar, appeal from Order entered March 2, 1990, Civ Div No 445 (Somerset Co 1988).
5. 1983 Codex Iuris Canonici Canon 489 § 1 (“1983 C.I.C.”). The phrase “secret archives” translates the Code's Latin phrase “archivum secretum.” A better translation might have been “confidential archives.”
6. Benedict, XIV, Encyclical Letter, Satis Vobis §§ 10, 11, 14 (11 17, 1741)Google Scholar.
7. Pius, X, Apostolic Constitution, Etsi Nos n.78 (01 1, 1912)Google Scholar.
8. 1977 Codex Iuris Canonici Canon 379 § 1 (“1917 C.I.C.”).
9. Id. at §§ 3-4.
10. 1983 C.I.C. at Canon 490 (cited in note 5). Under the 1983 Code, only the bishop may have the key to the secret archives; in the 1917 Code, there were to be two keys, one for the bishop and one for the vicar general or chancellor. See 1917 C.I.C. at Canon 379 § 3 (cited in note 8).
11. See Coriden, James A.et al, eds, The Code of Canon Law: Text and Commentary 397 (Paulist Press, 1985)Google Scholar.
12. The reference to “criminal cases” is actually a reference to the “penal procedures” which relate to violations of church law. The church may have a judicial process regarding such ecclesiastical crimes and the reports of these proceedings or “acts” are what are referred to here.
13. A “secret marriage” is one which is celebrated according to all the norms of law but without any of the usual publicity. Banns of marriage are not announced, the ceremony is private, and all involved keep the fact of the marriage a secret. An example of a reason for such a marriage would be that the marriage takes place in a country where the church is persecuted and religious marriages are forbidden.
14. This refers to a dispensation from a church law relating to marriage when the impediment to the validity of the marriage is not a matter of public knowledge.
15. The term “orders” refers to priestly ordination in the Catholic Church. Impediments to ordination include marriage, holding a public office, or assuming some other occupation that is unbecoming to the clerical state.
16. Loss of the clerical state generally refers to dismissal from the priesthood.
17. A “religious institute” is a religious order or community in which the members profess public vows and live as a community.
18. See Rinere, Elissa A., The Confidentiality of Written Documents in Canon Law, in Confidentiality in the United States: A Legal and Canonical Study 125, 131 (Canon Law Soc of Am, 1988)Google Scholar.
19. See id.
20. 1983 C.I.C. at Canon 490 (cited in note 5).
21. See Hadnot v Shaw, 826 P2d 978 (Okl 1992)(In this case in which two excommunicated members of a church brought a tort action against church and lay leaders, alleging libel, infliction of emotional distress and invasion of privacy, the Oklahoma Supreme Court held that because religious judicature is immune from any civil court inquest, it is also protected from intrusion by discovery. When the plaintiffs sought discovery by interrogatories and requests for production of writings, church records and reports pertaining to their expulsion, the court agreed with the church that the information sought was absolutely privileged by the First Amendment and the discovery request was denied.).
22. 606 A2d 905 (Pa Sup Ct 1992).
23. 42 Pa CSA § 5943 (1992). The appellation “clergyman” is from the statute and is not the choice of the author. The privilege is widely known in the literature under that name.
24. Pa RCP 4003.1.
25. FRCP 26(b)(1).
26. 117 A 216 (Pa 1922).
27. Luddy, 606 A2d at 908.
28. Id.
29. Id at 912.
30. See Seattle Times v Rhinehart, 467 U.S. 20, 32–33 (1984)Google Scholar.
31. 606 A2d at 908, citing Pa RCP 4003.1 (emphasis added).
32. Id at 909-10, quoting Fahlfeder v Com Penn Bd of Probation, 470 A2d 1130 (Pa Comwlth Ct 1984)Google Scholar.
33. Id at 910.
34. 42 Pa CSA § 5943 (1992).
35. 602 A2d 1290 (Pa 1992). Wilson was a criminal case. Although the focus of this article is the use of an evidentiary privilege in a civil case, Wilson indicates that the clergyman's privilege, like the rape counselor privilege dealt with in Wilson, would be available in a criminal case as well. As we shall see, the first cases to assert a common law clergyman's privilege were criminal cases (See text accompanying notes 45-51 below).
36. 42 Pa CSA § 5945.1 (1992).
37. Wilson, 602 A2d at 1290.
38. Breitenbeck, Marie, The Canonical Tradition of Confidentiality Pertaining to Oral Communications, in Confidentiality in the United States: A Legal and Canonical Study 93, 100 (Canon Law Soc of Am, 1988)Google Scholar.
39. See 1983 C.I.C. (cited in note 5).
40. Id at Canon 983 §§ 1-2.
41. Id Canon 984 § 2.
42. Id at Canon 1388 §§ 1-2.
43. See Kurtscheid, Bertrand, A History of the Seal of Confession 42–76 (Herder, 1927)Google Scholar.
44. Breitenbeck, , Canonical Study at 100 (cited in note 38)Google Scholar.
45. People v Phillips, 1 Western LJ 109 (1843)Google Scholar(NY Ct Gen Sess 1813)(this case was not officially reported, but was abstracted in 1 Western LJ 109 (1843)).
46. Privileged Communications to Clergymen, 1 Cath Lawyer 199, 207 (1955)Google Scholar(the full text of the Phillips abstract was reprinted in this journal).
47. People v Smith, NY City Hall Rec 77 (1817)Google Scholar.
48. Id.
49. NY Rev Stat 1828, pt 3, c 7, tit 3 § 72.
50. See Stokes, Anson P., 3 Church and State in the United States 433 (Harper & Brothers, 1950)Google Scholar.
51. Id at 434.
52. Wigmore, John H., 8 Evidence § 2394 (Little Brown, 1961)Google Scholar.
53. See, for example, Colo Rev Stat § 13-90-107 (Bradford, Supp 1992)(“A clergyman, minister, priest or rabbi shall not be examined without both his consent and also the consent of the person making the confidential communication as to any confidential communication made to him in his professional capacity in the course of discipline expected by the religious body to which he belongs.”) States and jurisdictions with similar wording in their statutes include Arizona, Ariz Rev Stat Ann § 12-2233 (1992); California, Cal Evid Code § 1030 et seq (1993); District of Columbia, DC Code § 14-309 (1992); Florida, Fla Evid Code § 90.55 (1991); Idaho, Idaho Code § 9-203 (1992); Illinois, Ill Rev Stat ch 110, ¶.8-803 (1992); Indiana, Ind Code Ann § 34-1-14-5 (1992); Massachusetts, Mass Ann Laws ch 233, § 20A (1992); Michigan, Mich Comp Laws § 600.2156 (1991); Minnesota, Minn Stat § 595.02 (1992); Montana, Mont Code Ann § 26-1-804 (1992); New Jersey, NJ Stat § 2A:84A-23 (1992); Oregon, ORS § 40.260, Rule 506 (1991); Rhode Island, RI Gen Laws § 9-17-23 (1992); Utah, Utah Code Ann § 78-24-8 (1992); Washington, Wash Rev Code § 5.60.060 (1991); West Virginia, W Va Code § 57-3-9 (1992). Other state laws require that the information be necessary to allow the clergyperson to discharge his or her office in accordance with the practice or discipline of the faith. See, for example, Iowa, Iowa Code § 622.20 (1991); North Carolina, NC Gen Stat § 853.2 (1992); South Carolina, SC Code Ann § 19-11-90 (1991); Tennessee, Tenn Code Ann § 24-1-206 (1992); Virginia, Va Code Ann §§ 8.01 and 19.2-271.3 (1992). But this is not the same as requiring that the.information be received in accordance with the church's practice or discipline.
54. Rev Unif Rules Evid 505. See Strong, John W., ed, McCormick on Evidence § 76.2 at 286–87 (4th ed 1992)Google Scholar. The states following the federal rule are: Arkansas, Ark Rules of Evid 505; Delaware, Del Rules of Evid 505; Hawaii, Hawaii Rules of Evid 506; Idaho, Id Ct Rules 505; Kentucky, Ky Rules of Evid 505; Maine, Me Rules of Evid; Mississippi, Miss Code Ann § 13-1-22 (1991); Nebraska, Neb Rev Stat § 27-506 (1991); New Mexico, NM Rules of Evid 11-506; North Dakota, ND Ct Rules Ann Evid Rule 505; Oklahoma, Okla Stat, tit 12 § 2505 (1991); South Dakota, SD Cod Laws Ann § 19-13-16 et seq (1992); Texas, Texas Rules of Civ Evid 505.
55. FRE 501.
56. See Trammel v US, 445 US 40, 51 (1980)Google Scholar. See also In re: Grand Jury Investigation, 918 F2d 374 (3rd Cir 1990).
57. See Strong, , ed, McCormick on Evidence § 72 at 268-72, and § 76.2 at 286 (cited in note 54)Google Scholar; see also Rev Unif Rules Evid 502-509.
58. This is the traditional basis used to justify the existence of evidentiary privileges. More recent analyses, instead of relying on the societal value of the relationship fostered by the privilege, look to the privacy expectation of the individuals as guaranteed by the Ninth Amendment. See Strong, , ed, McCormick on Evidence § 77 at 290 (cited in note 54)Google Scholar.
59. Wigmore, , 8 Evidence § 2285 (cited in note 52)Google Scholar.
60. See Strong, , ed, McCormick on Evidence at § 76.2 at 287 (cited in note 54)Google Scholar. See also Wigmore, , 8 Evidence at § 2286 nn.9, 21 (cited in note 52)Google Scholar. For a compilation of state statutes, see Caldero v Tribune Publishing Co., 562 P2d 791, 794 n.1 (1977), cert denied 434 US 930 (1978).
61. See Strong, , ed, McCormick on Evidence at § 76 at 289 n.27 (cited in note 54)Google Scholar.
62. The clergyman privilege exists in some form by statute in all fifty states. See Strong, , ed, McCormick on Evidence at § 76.2 at 286 (cited in note 54)Google Scholar.
63. See, for example, Church of Jesus Christ of Latter-Day Saints v Superior Court, 764 P2d 759 (Ct App Ariz 1988); and Scott v Hammock, 133 FRD 610 (D Utah 1990). See also In re Grand Jury Investigation, 918 F2d 374 (3rd Cir 1990) dealing with a grand jury subpoena for clergy counseling records.
64. See the list at note 53. See also, generally, Matters to Which the Privilege Covering Communications to Clergymen or Spiritual Adviser Extends, 71 ALR3d 794 (1976, supp 1992).
65. This was the ruling of the Circuit Court of Cook County, Illinois, Criminal Division, in In re August 1992 Grand Jury Subpoena Duces Tecum Dated August 28, 1992 (No. 1050) and September, 1992 (No. 514), (1992), which held that under the Illinois clergyman's privilege (Ill Rev Stat ch 110, ¶ 8-803 (1992)), a “pastoral privilege” covered such church investigations and insulated them from discovery pursuant to a grand jury subpoena.
66. These jurisdictions are: Alaska, Arizona, California, Indiana, Kansas, Massachusetts, Michigan, Minnesota, Montana, Nevada, Rhode Island, Utah, Vermont, Washington and Wyoming.
67. 764 P2d 759 (1988).
68. Id.
69. Id.
70. The Arizona statute at issue in Latter Day Saints reads:
In any civil or criminal litigation in which a child's neglect, dependency, abuse or abandonment is an issue, a clergyman or priest shall not, without his consent, be examined as a witness concerning any confession made to him in his role as a clergy man or priest in the course of the discipline enjoined by the church to which he belongs.
Ariz Rev Stat Ann § 13-3620(G) (1992).
71. 918 F2d 374 (3rd Cir 1990).
72. Id at 384.
73. 133 FRD 610 (D Utah 1990).
74. Id.
75. Id at 619.
76. A similar decision was reached in In re August 1992 Grand Jury Subpoenas Duces Tecum Dated August 28, 1992 (No. 1050) and September 1, 1992 (No. 514) Circuit Court of Cooks County, Illinois, Criminal Division.
77. The following states' statutes allow waiver by the communicant only: Alaska, Arizona, Arkansas, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, West Virginia and Wisconsin.
78. See, for example, the analysis in Church of Jesus Christ of Latter Day Saints v Superior Court, 764 P2d at 767-68; Scott v Hammock, 133 FRD at 617 et seq.
79. See Strong, , ed, McCormick on Evidence at § 75 at 281 n2 (cited in note 54)Google Scholar, on the creation of new common law privileges. FRE 501 also allows the judicial creation of new privileges. Id.
80. 460 F2d 553 (5th Cir 1972), cert denied, 409 US 896 (1972).
81. 772 F2d 1164 (4th Cir 1985).
82. 707 F2d 355 (8th Cir 1983).
83. Id at 358-59.
84. These criteria are: (1) Did the communication originate in a confidence that it would not be disclosed; (2) Is confidentiality essential to the full and satisfactory maintenance of the relationship between the parties; (3) Is the relationship one which in the opinion of the community ought to be fostered; (4) Would the injury to the relationship by disclosure of the communication be greater than the benefit gained by the litigant requesting the information? See text accompanying note 59.
85. 344 US 94, 107-08 (1952).
86. 479 NE2d 113, 122 (Mass 1985).
87. 460 F2d at 558-59.
88. 772 F2d 1164, 1167-68 (4th Cir 1985)(citations omitted).
89. See EEOC v Southwestern Baptist Theological Seminary, 651 F2d 277 (5th Cir 1981); Rayburn v. General Conference of Seventh-Day Adventists, 772 F2d 1164 (4th Cir 1985) cert denied, 478 US 1020 (1986); Hutchison v Thomas, 789 F2d 392 (6th Cir 1986) cert denied 479 US 885 (1986); Carter v Baltimore Annual Conference, 1987 WL 18470 (DDC 1187); Natal v Christian & Missionary Alliance, 878 F2d 1575, 1577 (1st Cir 1989)(“Howsoever a suit may be labelled, once a court is called upon to probe into a religious body's selection and retention of clergymen, the First Amendment is implicated.”); Minker v Baltimore Annual Conference of the United Methodist Church, 899 F2d 1354 (DC Cir 1990); Scharon v St. Luke's Episcopal Presbyterian Hospitals, 929 F2d 360 (8th Cir 1991); Lewis v Seventh Day Adventist Lake Region Conference 978 F2d 940 (6th Cir 1992); O'Connor Hospital v Superior Court, 240 Cal Rptr 766 (Cal App 1987).
90. Maida, Adam J., The Selection, Training, and Removal of Diocesan Clergy, 33 Cath Lawyer 53, 55–56 (1990)Google Scholar.
91. 707 F2d at 358-59.
92. Maida, 33 Cath Lawyer at 53 (cited in note 90).
93. Many states expressly prohibit employers from making any non-job-related inquiry, which expresses any limitation or discrimination as to race, religious creed, national origin, physical handicap, medical condition, marital status, or sex. (See, for example, Cal Govt Code § 12900 et seq). Federal discrimination laws have been interpreted to prohibit these inquiries as well under Title VII of the Civil Rights Act of 1964 (42 USC § 2000(e) et seq), the Age Discrimination in Employment Act of 1967 (29 USC § 621 et seq), and the Americans with Disabilities Act of 1990 (42 USC § 12101).
94. 460 F2d at 558-59.
95. Herbert v Lando, 441 US 153 (1979).
96. Id. See New York Times v Sullivan, 376 US 254 (1964)Google Scholar. This holding was applicable to alleged libels of “public officials,” and it was extended to “public figures” by Curtis Publishing Co. v. Butts, 388 US 130 (1967)Google Scholar. The plaintiff in Lando was considered to be a public figure.
97. 568 F2d 974 (2nd Cir 1977).
98. 441 US at 153.
99. 606 A2d at 909.
100. As the Court framed the issue in Lando:
Nevertheless, we are urged by respondents to override these important [discovery] interests because requiring disclosure of editorial conversations and of a reporter's conclusions about the veracity of the material he has gathered will have an intolerable chilling effect on the editorial process and editorial decision-making. But if the claimed inhibition flows from the fear of damages liability for publishing knowing or reckless falsehoods, those effects are precisely what New York Times and other cases have held to be consistent with the First Amendment. Spreading false information in and of itself carries no First Amendment credentials. “[T]here is no constitutional value in false statements of fact.”
441 US at 171 (citing Gertz v Robert Welch, Inc., 418 US 323, 340 (1974)Google Scholar).
101. As the Supreme Court wrote in Lando:
Moreover, given exposure to liability when there is knowing or reckless error, there is even more reason to resort to prepublication precautions, such as a frank interchange of fact and opinion.
441 US at 174.
102. Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v Amos, 483 US 327, 336 (1987)Google Scholar.
103. 483 US at 341, quoting Laycock, Douglas, Towards a General Theory of the Religion Clauses, 81 Colum L Rev 1373, 1389 (1981)CrossRefGoogle Scholar.
104. At least two recent state trial court opinions have reached a similar conclusion. See John K.B. v The Roman Catholic Bishop, Cause 88–1174 (Montana, 8th Dist 02 22, 1990)Google Scholar (mem order) and Minnesota v Carriere, Dist Ct Cnty of Roseau (9th Judic Dist Dec 11, 1991) (mem opinion).
105. There may be some question after Employment Division, Dept of Human Resources of Oregon v Smith, 494 US 872 (1990)Google Scholar whether accommodation of a church's free exercise rights requires this result. Smith is not applicable to the church/clergy privilege for several reasons. First, and most obviously, Smith did not deal with evidentiary privileges. Secondly, by Smith's own terms, the discovery process, when confronted with claims of evidentiary privilege is a “system of individual exemptions [where the state] may not refuse to extend that system to cases of religious hardship without compelling reason.” 494 US at 884. But historically, once a privilege is determined to exist, no reason, not even a compelling reason, can form a basis for disregarding it. The entire purpose of an evidentiary privilege is that testimony cannot be compelled over it.
106. See Hadnot v Shaw, 826 P2d 978 (Okl 1992).
