(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued March 3, 1997 -- Decided July 22, 1997
Pollock, J., writing for a majority of the Court.
This appeal presents two issues. The first is whether a parishioner's allegation of an inappropriate
sexual relationship between a clergyman and the parishioner states a cause of action when the relationship
occurs while the clergyman is providing pastoral counseling to the parishioner. The second issue is whether
the parishioner may maintain a cause of action against another clergyman who allegedly publicized in a
sermon and letter the relationship with the first clergyman.
Because the appeal arises on a motion for judgment on the pleadings under Rule 4:6-2(e), the Court
assumes the truth of the allegations of the complaint. In 1992, Reverend Alex MacDonell was the rector at
both All Saints Episcopal Church in Bergenfield and of St. Luke's Episcopal Church in Haworth. The
Reverend Fletcher Harper was the assistant rector at both churches in 1993. In January 1994, after
MacDonell's retirement, Harper succeeded MacDonell as rector. F.G. was a parishioner at All Saints in
1992-93.
From April 1992 to the end of 1993, F.G. consulted MacDonell for counseling. Aware that F.G. was
vulnerable, MacDonell nonetheless induced her to engage in a sexual relationship with him. Although the
complaint does not describe details of the relationship, it apparently did not involve sexual intercourse.
F.G. seeks, among other things, recovery from MacDonell for clergy malpractice. She alleges that
MacDonell owed her a special duty of care, that he engaged in sexual behavior in violation of that special
duty, and that he failed to exercise the degree of care that is exercised by the average qualified pastoral
counselor. F.G. also seeks recovery from MacDonell for negligent infliction of emotional distress and for
breach of fiduciary duty.
F.G. alleges that Harper violated her privacy rights by publishing her identity in an open letter to
the two parishes and in a sermon. She also alleges negligent misrepresentation, negligent infliction of
emotional distress, defamation, and depiction in a false light against Harper because he suggested in the
letter and sermon that the relationship was a voluntary romantic relationship and that F.G. had tried to
seduce MacDonell. Finally, F.G. alleges breach of fiduciary duty against Harper.
The Law Division dismissed all counts alleging negligent pastoral counseling, negligent infliction of
emotional distress, and breach of fiduciary duty. The Appellate Division reversed, remanding the matter to
permit F.G. to prove her claims against MacDonell and Harper for clergy malpractice and breach of
fiduciary duty.
HELD: F.G. may maintain a cause of action for breach of fiduciary duty against MacDonell. She may
maintain a cause of action against Harper for the same breach if, on remand, the Law Division concludes
that it can adjudicate that claim without becoming entangled in church doctrine.
1. A court may not inquire into the validity of a religious belief or practice. It may, however, apply neutral principles of law to decide an issue that does not implicate religious doctrine. In depositions, MacDonell and Harper acknowledged that a sexual relationship between a married rector and an unmarried parishioner violates the rector's fiduciary duty to the parishioner. Two other church officials testified that Episcopal
Church doctrine does not sanction improper sexual conduct by rectors. The record supports the inference
that MacDonell's alleged misconduct was not an expression of a sincerely held religious belief. Thus, the
courts can resolve this claim that a member of the clergy has committed sexually inappropriate conduct in
the course of pastoral counseling. (Pp. 7-10).
2. No other court in the United States has yet recognized a clergy-malpractice claim. Such a claim requires
definition of the relevant standard of care. Defining the standard could embroil courts in establishing the
skill applicable for members of the clergy, and deciding whether clergy had acted in accordance with them.
This could restrain the free exercise of religion. (Pp. 11-12).
3. Claims for breach of fiduciary duty are different. The essence of a fiduciary relationship is that one party
places trust and confidence in another who is in a dominant or superior position. The fiduciary's obligations
to the dependent party include a duty of loyalty and a duty to exercise reasonable skill and care. By
accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary. Establishing a
fiduciary duty essentially requires proof that a parishioner trusted and sought counseling from the pastor. A
violation of that trust constitutes a breach of the duty. But for MacDonell's status as a clergyman, his
conduct was unrelated to religious doctrine. Although MacDonell's ultimate goal in counseling F.G. may
have been to help her receive assistance from God, his sexual misconduct violated her legal rights. So
viewed, F.G.'s claim does not restrict MacDonell's free exercise of religion. (Pp. 13-17).
4. F.G.'s claims against Harper present additional considerations. Harper's alleged breaches occurred in
sermons and letters to the congregations. Evaluation of those sermons and letters might entangle a court in
religious doctrine. The trial court must hold a hearing to determine whether it can adjudicate Harper's
alleged breach by reference to neutral principles. If it can, F.G. may maintain her action against Harper.
(Pp. 17-18).
The judgment of the Appellate Division is AFFIRMED in part and REVERSED in part, and the
matter is REMANDED to the Law Division.
JUSTICE O'HERN, dissenting, is of the view that the majority makes the pastor's conduct a tort
because he is a cleric. He notes that no principle of civil law makes it a tort for competent adults to engage
in consensual sexual conduct. Whatever one may think of the morality of the acts involved, a breach of the
tenets of the pastor's Episcopal religion does not give rise to a tort action.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, STEIN and COLEMAN join in JUSTICE
POLLOCK's opinion. JUSTICE O'HERN has filed a separate dissenting opinion, in which JUSTICE
GARIBALDI joins.
SUPREME COURT OF NEW JERSEY
A-
125 September Term 1996
F.G.,
Plaintiff-Respondent,
v.
REVEREND ALEX MACDONELL, in his
capacity as former Rector, and
REVEREND FLETCHER HARPER, in his
capacity as Rector of ALL SAINTS'
EPISCOPAL CHURCH, Bergenfield, New
Jersey and ST. LUKE'S EPISCOPAL
CHURCH, Haworth, New Jersey,
Defendants-Appellants.
Argued March 3, 1997 -- Decided July 22, 1997
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at
291 N.J. Super 262 (1996).
Gregory D. Winter argued the cause for
appellant Reverend Alex MacDonell
(Felzenberg, Winter & Winkler, attorneys).
David S. Rutherford, a member of the New York
bar, argued the cause for appellant Reverend
Fletcher Harper (Renzulli, Gainey &
Rutherford, attorneys).
Alan L. Zegas and Herbert D. Friedman, a
member of the Massachusetts bar, argued the
cause for respondent (Mr. Zegas, attorney;
Mr. Friedman and Sharon J. Bittner, on the
brief).
Martin F. McKernan, Jr., submitted briefs on
behalf of amicus curiae New Jersey Catholic
Conference (McKernan, McKernan & Godino,
attorneys; Mr. McKernan and James J. Godino,
Jr., on the briefs).
Douglas E. Arpert and Sanford D. Brown joined
in the briefs submitted by The New Jersey
Catholic Conference on behalf of amici curiae
Bishop Alfred Johnson, Northern New Jersey
Annual Conference of the United Methodist
Church and Southern New Jersey Annual
Conference of the United Methodist Church
(Evans Hand and Cerrato, Dawes, Collins,
Saker & Brown, attorneys).
The opinion of the Court was delivered by
POLLOCK, J.
This appeal presents two issues. The first issue is whether
a parishioner's allegation of an inappropriate sexual
relationship between a clergyman and the parishioner states a
cause of action when the relationship occurs while the clergyman
is providing pastoral counseling to the parishioner. Second, we
must decide whether the parishioner may maintain a cause of
action against another clergyman who allegedly publicized in a
sermon and a letter the relationship with the first clergyman.
The Law Division dismissed all claims of the parishioner,
F.G., against the first clergyman, the Reverend Alex MacDonell,
as well as her claim against the second clergyman, the Reverend
Fletcher Harper, for clergy malpractice and breach of fiduciary
duty. The Appellate Division reversed and remanded the matter to
the Law Division.
291 N.J. Super. 262 (1996). We granted leave
to appeal to MacDonell and Harper.
146 N.J. 562 (1996).
We conclude that F.G., may maintain a cause of action for
breach of fiduciary duty against MacDonell, formerly the rector
of All Saints Episcopal Church, Bergenfield, New Jersey (All
Saints). MacDonell, who was married at the time of the events
described in the complaint, is the clergyman who allegedly
induced F.G. to engage in the inappropriate sexual relationship.
F.G.'s cause of action against defendant Rev. Fletcher Harper is
more problematic. Harper wrote a letter and delivered a sermon
to the congregation about MacDonell's relationship with F.G.
Whether F.G. may maintain her action against Harper depends on
whether a court may adjudicate her claims without becoming
entangled in church doctrine. If on remand the Law Division
concludes it can avoid any such entanglement, then F.G. may
maintain her cause of action against Harper for breach of
fiduciary duty.
Because the appeal arises on defendants' motion for judgment on the pleadings under Rule 4:6-2(e), we assume the truth of the allegations of the complaint, giving plaintiff the benefit of all reasonable factual inferences that those allegations support. See Independent Dairy Workers Union v. Milk Drivers Local 680, 23 N.J. 85, 89 (1956). If a generous reading of the allegations merely suggests a cause of action, the complaint will withstand the motion. Printing Mart-Morristown v. Sharp Elec. Corp., 116 N.J. 739, 746 (1989). So read, the record supports the following factual statement.
In 1992, MacDonell was the rector at both All Saints and an affiliated church, St. Luke's Episcopal Church, in Haworth.
Harper was the assistant rector at both churches in 1993. In
January 1994, following MacDonell's retirement, Harper succeeded
MacDonell as rector. F.G. was a parishioner at All Saints in
1992-93.
From April 1992 until the end of 1993, F.G. consulted
MacDonell for counseling. Aware that F.G. was vulnerable,
MacDonell nonetheless induced her to engage in a sexual
relationship with him. Although the complaint does not describe
details of the relationship, it apparently did not involve sexual
intercourse.
In Count I, F.G. seeks recovery for clergy malpractice. She
alleges that MacDonell owed her "a special duty of care not to
engage in unethical and harmful behavior towards [her]." The
complaint continues that he "engaged in sexual behavior with
[her] inappropriate to and in violation of [the special
relationship]" he owed her, and that "he failed to exercise the
degree of skill, care and diligence which is exercised by the
average qualified pastoral counselor provider." In Count II,
F.G. seeks recovery for negligent infliction of emotional
distress. Finally, in Count III, F.G. alleges that as her pastor
MacDonell owed her "a strict fiduciary duty to act in good faith
and in her best interests and to refrain from conduct" that
carried the risk of harm. F.G. asserts that MacDonell "breached
his fiduciary duty by wrongfully and unlawfully exploiting F.G.'s
trust and confidence by engaging in inappropriate sexual behavior
with [her] and creating an unreasonable risk of mental and
emotional harm to [her]."
The remaining counts allege claims against Harper. F.G.
alleges that on March 31, 1994, she met with Harper to discuss
MacDonell's "inappropriate physical conduct" with her and "the
possibility of notifying the parishes of All Saints and St.
Lukes" about that contact. Harper knew that she had been
receiving in-patient care at a psychiatric hospital and that she
had tried to commit suicide five days before the meeting.
In Count IV, F.G. alleges that Harper owed her a duty of
care "not to publish any identifying information, including her
identity and the nature and extent of defendant MacDonell's
inappropriate sexual behavior with her, to the members of the
parishes of [All Saints and St. Lukes]." On April 14, 1994, in
breach of that duty and without F.G.'s consent, Harper published
an open letter to the parishioners of the two churches. In his
April 17 sermon at St. Luke's, Harper identified F.G. and
described some details of MacDonell's inappropriate sexual
behavior. Count IV concludes by alleging that Harper's conduct
constituted a breach of F.G.'s privacy.
Count V alleges a claim in negligent misrepresentation
asserting that Harper negligently represented that public
disclosure of F.G.'s name was for her benefit and part of his
pastoral care for her. He never informed her "that he intended
to publish details concerning defendant MacDonell's inappropriate
physical contact with her and never requested nor received F.G.'s
consent to do same." Instead, the letter and sermon falsely
suggested that she and MacDonell "were engaged in a voluntary
romantic relationship between two consenting, mature adults
rather than an abusive relationship between a pastoral care
provider and pastoral counselor and a client." F.G. contends
that Harper presented her relationship with MacDonell as a
"romantic relationship" and erroneously suggested that she had
tried to seduce MacDonell. In Counts VI, VII, and VIII the
complaint respectively alleges claims for negligent infliction of
emotional distress, defamation, and depiction in a false light.
Finally, Count IX alleges that Harper breached a fiduciary duty
owed to F.G.
The Law Division dismissed Counts I, II, III, and IX, which
respectively allege negligent pastoral counseling, negligent
infliction of emotional distress, and breach of fiduciary duty by
MacDonell, as well as breach of fiduciary duty by Harper. The
Appellate Division reversed and remanded the matter to the Law
Division. The purpose of the remand was to permit F.G. to prove
her claims against defendants for clergy malpractice and breach
of their fiduciary duty.
We believe that a claim for breach of fiduciary duty
provides the more appropriate form of relief than does clergy
malpractice. An action for breach of a clergyman's fiduciary
duty permits the parishioner to recover monetary damages without
running the risk of entanglement with the free exercise of
religion. Consequently, we modify the judgment of the Appellate
Division by allowing F.G.'s claim for breach of fiduciary duty
against MacDonell, and, subject to a hearing on entanglement with
church doctrine, allowing a similar claim against Harper.
The threshold issue is whether the First Amendment to the United States Constitution shields a member of the clergy from a claim for inappropriate sexual conduct with a parishioner who has consulted the clergy member for pastoral counseling. Defendants maintain that F.G.'s claims, whether characterized as for clergy malpractice or for breach of fiduciary duty, necessarily entangle the courts in the free exercise of religion. We disagree. The free exercise of religion does not permit members of the clergy to engage in inappropriate sexual conduct with parishioners who seek pastoral counseling.
The First Amendment prohibits any "law respecting the establishment of religion, or prohibiting the free exercise thereof." U.S. Const. amend. I. It, however, does not prohibit courts from any involvement in religious disputes. The amendment merely prohibits courts from determining underlying questions of religious doctrine and practice. Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hill Mem. Presbyterian Church, 393 U.S. 440, 449, 89 S. Ct. 601, 606, 21 L. Ed.2d 658, 665 (1969).
A party challenging state action as violative of free-exercise rights must establish that the action produces a coercive effect on the practice of religion. Abington School
Dist. v. Schempp,
374 U.S. 203, 223,
83 S. Ct. 1560, 1572,
10 L.
Ed.2d 844, 858 (1963). The conduct at issue must have been part
of the beliefs and practices of the defendant's religion. See
Wisconsin v. Yoder,
406 U.S. 205, 215-16,
92 S. Ct. 1526, 1533-34,
32 L. Ed.2d 15, 25-26 (1975) (stating "to have the
protection of the [r]eligious [c]lause the claims must be rooted
in religious belief").
A court may not inquire into the validity of a religious
belief or practice that prompts the challenged conduct. United
States v. Ballard,
322 U.S. 78,
64 S. Ct. 882,
88 L. Ed. 1148
(1944). A court, however, may apply neutral principles of law to
decide an issue that does not implicate religious doctrine. See
Elmora Hebrew Ctr. Inc. v. Fishman,
125 N.J. 404, 413 (1991)
(stating "religious parties or institutions are not . . . less
entitled to civil adjudication of secular legal questions").
Neutral principles "are wholly secular legal rules whose
application to religious parties or disputes does not entail
theological or doctrinal evaluations." Id. at 414-15. Only
"when the underlying dispute turns on doctrine or polity" should
a court refuse to enforce secular rights. Welter v. Seton Hall
Univ.,
128 N.J. 279, 293 (1992).
Courts in other jurisdictions have found that when purely
secular conduct is at issue, they may hold churches and clerics
liable for the effect of their conduct on third parties. Thus,
the Supreme Court of Colorado has permitted claims for breach of
fiduciary duty, when the claims did not arise from ecclesiastical
matters. Moses v. Diocese of Colorado,
863 P.2d 310, 323 (Colo.
1993), cert. denied, 511 U.S. 1137,
114 S. Ct. 2153, l
28 L. Ed.2d 880 (1994). Similarly, an Oregon Court has concluded that
claims for breach of fiduciary duty and intentional infliction of
emotional distress did not violate the First Amendment. Erickson
v. Christenson,
781 P.2d 383, 386 (Or. Ct. App. 1989).
Likewise, courts have recognized claims for intentional
torts against clergymen. Thus, clergymen have been held liable
for obtaining gifts and donations of money by fraud, Ballard,
supra,
322 U.S. 78,
64 S. Ct. 882,
88 L. Ed. 1148; sexual
assault, Mutual Service Cas. Ins. Co. v. Puhl,
354 N.W.2d 900
(Minn. Ct. App. 1984); unlawful imprisonment, Whittaker v.
Sandford,
85 A. 399 (Me. 1912); alienation of affections, Hester
v. Barnett,
723 S.W.2d 544, 522 (Mo. Ct. App. 1987); and for
sexual harassment, intentional infliction of emotional distress,
and defamation, Guinn v. Church of Christ of Collinsville,
775 P.2d 766, 785-86 (Okl. 1989).
F.G. alleges that MacDonell, while acting as F.G.'s pastoral
counselor, improperly induced her to engage in a sexual
relationship. She claims that his conduct caused her to sustain
physical injury, extreme emotional and psychological injury, and
economic loss. Further, she asserts his alleged wrongdoing falls
outside Episcopal doctrine. Consequently, F.G. concludes that
the First Amendment does not protect MacDonell.
In depositions, both MacDonell and Harper acknowledged that
a sexual relationship between a married rector and an unmarried
parishioner violates the rector's fiduciary duty to the
parishioner. Furthermore, defendants acknowledged that they were
unaware of any Episcopal teachings that sanction a sexual
relationship between a married rector and an unmarried
parishioner. MacDonell specifically testified that Episcopal
teaching condemns such conduct.
Two other church officials, Bishop John Spong of the
Episcopal Archdiocese of Newark and Reverend Franklin Vilas, the
chairman of the Standard Commission on Clergy Ethics of the
Diocese of Newark, testified that Episcopal Church doctrine does
not sanction improper sexual conduct by rectors. Bishop Spong
also testified that by engaging in sexually exploitative conduct
with F.G., MacDonell violated his fiduciary duty to her. In sum,
the record supports the inference that MacDonell's alleged
misconduct was not an expression of a sincerely held religious
belief, but was an egregious violation of the trust and
confidence that F.G. reposed in him.
The First Amendment does not insulate a member of the clergy
from actions for breach of fiduciary duty arising out of sexual
misconduct that occurs during a time when the clergy member is
providing counseling to a parishioner. Thus, without impinging
on the First Amendment, courts can resolve a claim that a member
of the clergy has committed sexually inappropriate conduct in the
course of pastoral counseling.
The next question concerns the nature of the duty that defendants owed to F.G. The Appellate Division held that defendants owed F.G. a duty of care, that they breached that duty, and that she could maintain a cause of action for "clergy malpractice." In so concluding, the Appellate Division acknowledged that F.G.'s claim presented an issue of first impression in New Jersey, and that no other court in the United States had yet recognized a clergy-malpractice claim. 291 N.J. Super. at 267-71; see Dausch v. Rykse, 52 F.3d 1425, 1432 n. 4 (7th Cir. 1996) (collecting cases from state supreme courts holding no cause of action for clergy malpractice). Deterring other courts has been the concern that a clergy-malpractice claim will entangle courts with the First Amendment's protection of the free exercise of religion. See, e.g., Nally v. Grace Community Church of the Valley, 763 P.2d 948, 960 (Cal. 1988) (stating "it would certainly be impractical, and quite possibly unconstitutional, to impose a duty of care on pastoral counselors"), cert. denied 490 U.S. 1007, 109 S. Ct. 1644, 104 L. Ed.2d 159 (1989); Schmidt v. Bishop, 779 F. Supp. 321, 327-28 (S.D.N.Y. 1991) (finding excessive entanglement if court were to define or express standard of care to be followed by other reasonable clerics in community).
Several problems inhere in a claim for clergy malpractice. First, such a claim requires definition of the relevant standard of care. Defining that standard could embroil courts in
establishing the training, skill, and standards applicable for
members of the clergy in a diversity of religions with widely
varying beliefs. Strock v. Pressnell,
527 N.E.2d 1235, 1239
(Ohio 1988). Furthermore, defining such a standard would require
courts to identify the beliefs and practices of the relevant
religion and then to determine whether the clergyman had acted in
accordance with them. Schmidt, supra, 779 F. Supp. at 328; see
also Dausch, supra, 52 F.
3d at 1432 (emphasizing evaluation of
clergy malpractice complaint would require courts extensively to
evaluate and investigate religious tenets and doctrine); Nally,
supra, 763 P.
2d at 960 (noting "the secular state was not
equipped to ascertain the competency of counseling when performed
by those affiliated with religious organizations"); Destefano v.
Grabrian,
763 P.2d 275, 290 (Colo. 1988) (Quinn, C.J., specially
concurring) (finding judicial recognition of clergy malpractice
action creates a "formidable obstacle to bona fide religious . .
. counseling [that] would fly directly in the face of the Free
Exercise Clause"); Hester, supra, 723 S.W.
2d at 553 (observing
clergy malpractice would force courts to judge "competence,
training, methods, and content of the pastoral function" in
deciding whether cleric breached his or her duty of care); Bladen
v. First Presbyterian Church,
857 P.2d 789, 797 (Okla. 1993)
(stating "[o]nce a court enters the realm of trying to define the
nature of advice a minister should give a parishioner[,] serious
First Amendment issues are implicated"). The entanglement could
restrain the free exercise of religion.
Concerns about religious entanglement have led some courts
also to deny claims for breach of fiduciary duty. Id. at 326
(stating "in analyzing and defining the scope of a fiduciary duty
owed persons by their clergy, the Court would be confronted by
the same constitutional difficulties encountered in articulating
the generalized standard of care for a clergyman required by the
law of negligence"); see also Schieffer v. Catholic Archdiocese
of Omaha,
508 N.W.2d 907, 912 (Neb. 1993) (agreeing with
reasoning of Schmidt and rejecting fiduciary duty claims against
clergy members); Strock, supra, 527 N.E.
2d at 1243 (stating claim
for breach of fiduciary duty is essentially claim for
negligence); Bladen, supra, 857 P.
2d at 796 (same). We conclude,
however, that courts can adjudicate F.G.'s claim for breach of
fiduciary duty without becoming entangled in the defendants' free
exercise of their religion.
The essence of a fiduciary relationship is that one party
places trust and confidence in another who is in a dominant or
superior position. A fiduciary relationship arises between two
persons when one person is under a duty to act for or give advice
for the benefit of another on matters within the scope of their
relationship. Restatement (Second) of Torts § 874 cmt. a (1979);
see In re Stroming's Will,
12 N.J. Super. 217, 224 (App. Div.),
certif. denied,
8 N.J. 319 (1951) (stating essentials of
confidential relationship "are a reposed confidence and the
dominant and controlling position of the beneficiary of the
transaction"); Blake v. Brennan,
1 N.J. Super. 446, 453 (Ch. Div.
1948) (describing "the test [as] whether the relationship between
the parties were of such a character of trust and confidence as
to render it reasonably certain that the one party occupied a
dominant position over the other"); Bogert, Trusts and Trustees
2d § 481 (1978) (stating "[t]he exact limits of the term
`fiduciary relation' are impossible of statement. Depending upon
the circumstances of the particular case or transaction, certain
business, public or social relationships may or may not create or
involve a fiduciary character."). The fiduciary's obligations to
the dependent party include a duty of loyalty and a duty to
exercise reasonable skill and care. Restatement (Second) of
Trusts §§ 170, 174 (1959). Accordingly, the fiduciary is liable
for harm resulting from a breach of the duties imposed by the
existence of such a relationship. Restatement (Second) of Torts
§ 874 (1979).
Trust and confidence are vital to the counseling
relationship between parishioner and pastor. By accepting a
parishioner for counseling, a pastor also accepts the
responsibility of a fiduciary. Often, parishioners who seek
pastoral counseling are troubled and vulnerable. Sometimes, they
turn to their pastor in the belief that their religion is the
most likely source to sustain them in their time of trouble. The
pastor knows, or should know of the parishioner's trust and the
pastor's dominant position.
Several jurisdictions have recognized that a clergyman's
sexual misconduct with a parishioner constitutes a breach of a
fiduciary relationship. See, e.g., Sanders v. Casa View Baptist
Church,
898 F. Supp. 1169, 1176 (N.D. Tex. 1995) (denying motion
to dismiss breach-of-fiduciary- duty claims against minister);
Moses, supra, 863 P.
2d at 323 (holding record supported jury
finding that fiduciary relationship existed between Bishop,
diocese, and plaintiff, and that such duty was breached);
Destefano, supra, 763 P.
2d at 284 (recognizing viability of
breach of fiduciary duty claims against members of clergy);
Erickson, supra, 1781 P.
2d at 386 (same); Adams v. Moore,
385 S.E.2d 799, 801 (N.C. Ct. App. 1989) (finding preacher violated
fiduciary duty by using position and influence to obtain deed to
parishioner's home). We find the rationale of those cases to be
persuasive. In Destefano, supra, the Colorado Supreme Court held
that the defendant, a Catholic priest, owed a fiduciary duty to a
parishioner who sought counseling from him concerning her marital
problems. 763 P.
2d at 284. By engaging in sexual intercourse
with the parishioner, the priest breached a fiduciary duty that
he owed her. Ibid. Subsequently, in Moses, supra, the same
court considered the case of a parishioner who entered into a
sexual relationship with an associate priest during a counseling
relationship. 863 P.
2d at 314. The Court found sufficient
evidence for the jury to conclude that the defendants, an
Episcopalian bishop and the diocese, owed a fiduciary duty to the
plaintiff and that they had breached that duty by failing to
provide the parish with personnel files indicating that the
priest had psychological problems. Id. at 315.
Unlike an action for clergy malpractice, an action for
breach of fiduciary duty does not require establishing a standard
of care and its breach. Moses, supra, 863 P.
2d at 321, n.13.
Establishing a fiduciary duty essentially requires proof that a
parishioner trusted and sought counseling from the pastor. A
violation of that trust constitutes a breach of the duty.
The dissent recoils from the prospect that inappropriate
sexual misconduct by a member of the clergy could result in
liability to an adult parishioner who has consulted the clergy
member for counseling. Yet, the dissent acknowledges that a
member of the clergy could be liable if the parishioner "was
legally unable to give consent to sexual relations," post at
(slip op. at 10), or if the parishioner was a child, post at
(slip op. at 2, 5). The dissent, nonetheless, would permit a
clergyman to victimize a parishioner whose vulnerability has led
the parishioner to seek refuge in pastoral counseling. In the
final analysis, the dissent simply refuses to accept that
pastoral counselors, like psychotherapists, see N.J.A.C. 13:42-10.9, may be liable for breach of a fiduciary relationship with a
parishioner.
Ordinarily, consenting adults must bear the consequences of
their conduct, including sexual conduct. In the sanctuary of the
church, however, troubled parishioners should be able to seek
pastoral counseling free from the fear that the counselors will
sexually abuse them. Our decision does no more than extend to
the defenseless the same protection that the dissent would extend
to infants and incompetents.
F.G.'s complaint essentially alleges that MacDonell's sexual
misconduct was not so much a failure to adhere to the standards
of care applicable to pastoral counseling as it was a violation
of F.G.'s trust. But for MacDonell's status as a clergyman, his
conduct was unrelated to religious doctrine. Although
MacDonell's ultimate goal in counseling F.G. may have been to
help her receive assistance from God, his sexual misconduct
violated her legal rights. So viewed, F.G.'s claim does not
restrict MacDonell's free exercise of religion.
The Appellate Division also reinstated F.G.'s claim for
negligent infliction of emotional distress. 291 N.J. Super. at
276. We likewise conclude that F.G. may maintain her claim for
emotional distress arising from MacDonell's breach of his
fiduciary duty to her. Our recognition of F.G.'s claim is
consistent with the general rule that a claimant who suffers
emotional trauma may recover from the tortfeasor who has caused
the claimant distress. Gedek v. Poblete,
139 N.J. 291, 296
(1995).
F.G.'s claim against Harper presents additional
considerations. Basically, F.G. alleges that she consulted
Harper for counseling because of MacDonell's inappropriate
physical conduct with her and "the possibility of notifying the
parishes of All Saints and St. Lukes" about that conduct. F.G.
alleges further that Harper induced F.G. "to give consent to the
public disclosure, by letter, of [her] name," by his negligent
misrepresentation "that this disclosure was for [her] benefit and
part of his pastoral care [of her]." According to F.G., Harper
breached his fiduciary duty by "exploiting [her] trust and
confidence" through his mischaracterization of MacDonell's
conduct and the nature of the relationship between him and F.G.
Our review of those allegations begins with the realization
that Harper's alleged breaches occurred in sermons and letters to
the congregations. Evaluating those sermons and letters might
entangle a court in religious doctrine. The question remains
whether, without becoming entangled in religious doctrine, a
court can adjudicate Harper's alleged breach of his fiduciary
duty to F.G. If the trial court can make such a determination by
reference to neutral principles, F.G. may maintain her action
against Harper. We conclude that the trial court should conduct
a hearing to determine whether it can decide F.G.'s allegations
by reference to such principles. Elmora, supra, 125 N.J. at 414.
If so, F.G. may proceed with her action against Harper.
In sum, we conclude that F.G. may proceed with her claims for breach of fiduciary duty and negligent infliction of emotional distress against MacDonell.
Whether F.G. may proceed against Harper for his alleged breach of fiduciary duty depends on the outcome of the Elmora hearing.
The judgment of the Appellate Division is affirmed in part
and reversed in part, and the matter is remanded to the Law
Division.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, STEIN and COLEMAN
join in JUSTICE POLLOCK's opinion. JUSTICE O'HERN has filed a
separate dissenting opinion, in which JUSTICE GARIBALDI joins.
SUPREME COURT OF NEW JERSEY
A-
125 September Term 1996
F.G.,
Plaintiff-Respondent,
v.
REVEREND ALEX MACDONELL, in his
capacity as former Rector, and
REVEREND FLETCHER HARPER, in his
capacity as Rector of ALL SAINTS'
EPISCOPAL CHURCH, Bergenfield, New
Jersey and ST. LUKE'S EPISCOPAL
CHURCH, Haworth, New Jersey,
Defendants-Appellants.
O'HERN, J., dissenting.
The majority states that the "threshold issue is whether the
First Amendment to the United States Constitution shields a
member of the clergy from a claim for inappropriate sexual
conduct with a parishioner who has consulted the clergy member
for pastoral counseling." Ante at ___ (slip op. at 7).
Reasoning that the First Amendment to the United States
Constitution may be asserted as a defense to a defendant's
conduct only when the conduct that caused the plaintiff's injury
finds its basis in religious beliefs and practice, Wisconsin v.
Yoder,
406 U.S. 205,
92 S. Ct. 1526,
32 L. Ed.2d 15 (1972), the
majority concludes that because the pastor acknowledges that no
tenet of his religion sanctions sexual contact with a congregant,
the conduct is a tort. Such reasoning misses the constitutional
point entirely. Reverend MacDonell is not asserting that conduct
otherwise tortious is protected because it is religious. Rather,
F.G. asserts that the conduct is tortious because the defendant
is a religious.
It is simply impossible for a court to define the duties of
a member of the clergy and impose civil liability therefor. To
do so would establish an official religion of the state,
something forbidden by the First Amendment.
I must emphasize at the outset that the First Amendment does
not protect pedophiles or charlatans wearing religious garb.
Members of religious bodies are as liable for worldly wrongs as
are any other members of society. A minister, priest or rabbi
has no license to steal and no license to commit a sexual offense
condemned by law:
It is well settled that clergy may be sued
for the torts they commit. For example,
religious leaders have been held liable for
obtaining gifts and donations of money by
fraud, United States v. Ballard (1944),
322 U.S. 78,
64 S. Ct. 882,
88 L. Ed. 1148; for
undue influence in the transfer of property,
Nelson v. Dodge (1949),
76 R.I. 1,
68 A.2d 51; for the kidnapping of a minor, for
damages to the parents resulting therefrom,
and for malicious prosecution of the mother
in alleging she was an unfit parent, Magnuson
v. O'Dea (1913),
75 Wash. 574,
135 P. 640;
for unlawful imprisonment, Whittaker v.
Sandford (1912),
110 Me. 77,
85 A. 399; for
homosexual assault, Mutual Service Cas. Ins.
Co. v. Puhl (Minn. 1984),
354 N.W.2d 900
. . . .
[Strock v. Pressnell,
527 N.E.2d 1235, 1237
(Ohio 1988).]
Each such act was tortious or wrong, not because the actors
were clerics, but because the conduct would have been wrong for
every member of society.
The problem for F.G. is that no law makes it a tort or crime
for consenting adults to engage in sexual relationships. See
State v. Saunders,
75 N.J. 200 (1977) (discussing what sexual
conduct between certain adults may be made criminal). The only
basis for tort liability set forth in plaintiff's complaint is:
"During the course of their pastoral care and pastoral
counselling relationship there was a breach of the special duty
of care which MacDonell owed F.G. as her pastoral care provider
and pastoral counsellor." Had Alex MacDonell been a neighbor,
co-worker, or friend seeking to comfort F.G., no secular law
would make his extramarital affair a tort or crime.
No court in the United States has created a tort of clergy
malpractice for the simple reason that to do so would require a
court to establish a state religion. See Carl H. Esbeck, Tort
Claims Against Churches and Ecclesiastical Officers: the First
Amendment Considerations,
89 W. Va. L. Rev. 1 (1986) (explaining
that such inquiry would require courts to establish a set of
acceptable religions).
In Hester v. Barnett,
723 S.W.2d 544, 553 (Mo. Ct. App.
1987), the court observed: "[A] theory of malpractice is defined
in terms of the duty to act with that degree of skill and
learning ordinarily used in the same or similar circumstances by
members of that profession." Recognizing clergy malpractice
would force a court to judge "the competence, training, methods
and content of the pastoral function" in deciding whether the
cleric breached this duty. Ibid. Just a few months ago, the
Wisconsin Supreme Court reaffirmed in the context of a cleric's
sexual relations with another, that a claim for negligent
supervision of conduct that offended no civil law "was precluded
by the First Amendment because it would require an inquiry into
church laws, practices, and policies." L.L.N. v. Clauder,
563 N.W.2d 434, 441 (1997).
In almost identical circumstances, a husband complained that
an adulterous sexual relationship between his deceased wife and
an Episcopal priest had an adverse effect on his wife's mental
status to the extent that it may have caused her suicide.
Roppolo v. Moore,
644 So.2d 206 (La. Ct. App. 1994), writ denied,
650 So.2d 253 (La. 1995). The court explained that it could not
base tort liability on the religious affiliation of a sexual
partner. "[T]hey were both adults. As there is no civil nor
criminal prohibition against such conduct between adult
laypersons the State cannot penalize such conduct because Dr.
Moore was an Episcopal priest." Id. at 208. To do so would
require this Court to determine the standards of the Episcopal
Church and "then put the weight of the State behind those
standards or to require a different standard of behavior of the
clergy." Ibid. The State cannot penalize sexual conduct between
adult laypersons because such conduct violates no law.
F.G. relies on the depositions of the Episcopal bishop of
the diocese and Rector MacDonell, each of whom acknowledged that
sexual conduct with a parishioner was beyond the tenets of the
Episcopal Church. Still, the Court cannot "put the weight of the
State" behind those standards in order to impose civil liability.
Ibid. To do so would establish the tenets of Episcopal religion
as the basis for civil liability.
Much needless confusion has arisen in this area because some
courts have mistakenly allowed religious to plead the Free
Exercise Clause as a defense to conduct that was plainly
tortious, such as a sexual contact with an unconsenting minor
child or even a crime of sexual misconduct. Cases such as
Schmidt v. Bishop,
779 F. Supp. 321 (S.D.N.Y. 1991), are mistaken
if they are read to suggest that the First Amendment immunizes
pedophiliac conduct by members of religious bodies. Such cases
rejected clergy malpractice claims on the basis of free exercise,
not because sexual molestation is protected conduct, but because
of fear of venturing down a "slippery slope" into questions of
liability impossible and unconstitutional to determine. Schmidt,
supra, 779 F. Supp. at 328.
However, there is no slope on which to slip in such cases.
Sexual molestation of a minor can never be justified under the
Free Exercise Clause. What courts such as Schmidt were simply
stating was that there was no need to create a new tort to
provide a remedy for conduct that was already tortious. "For
clergy malpractice to be recognized, the cleric's behavior, even
if it is related to [ ] `professional' duties, must fall outside
the scope of other recognized torts." Strock, supra, 527 N.E.
2d
at 1239.
Even Nally v. Grace Community Church of the Valley,
240 Cal.
Rptr. 215 (Ct. App. 1987), once described as "[t]he most
celebrated clergy malpractice case," Arlin M. Adams & Charles J.
Emmerich, A Heritage of Religious Liberty,
137 U. Pa. L. Rev.
1559, 1671 n. 361 (1989), was later reversed by the California
Supreme Court.
763 P.2d 948 (Cal. 1988), cert. denied,
490 U.S. 1007,
109 S. Ct. 1644,
104 L. Ed.2d 159 (1989).
Because of the differing theological views
espoused by the myriad of religions in our
state and practiced by church members, it
would certainly be impractical, and quite
possibly unconstitutional, to impose a duty
of care on pastoral counselors. Such a duty
would necessarily be intertwined with the
religious philosophy of the particular
denomination or ecclesiastical teachings of
the religious entity.
Of course, there are clerics who wear two hats. To assess the conduct of a cleric moonlighting as a TV repair person establishes no state religion. There are even clerics who are licensed as attorneys, physicians, or psychological therapists. Of course, should clerics hold themselves out as recognized members of other professions, they would be liable if they fail to meet the standards of that profession. In Dausch v. Rykse, 52 F.3d 1425, 1428 n.3 (7th Cir. 1994), the defendant represented to the plaintiff that he was a capable, trained professional on whom she could rely to assist her with her personal problems and could
provide "secular psychological, not religious, counseling"
(emphasis added). He demanded compensation for his services in
the form of sexual favors. Such a person having doffed the robe
of cleric may be held to the standards assumed, although not on
the basis of the creation of a tort of clergy malpractice.See footnote 1
There is absolutely no suggestion of such an assumption of
secular duties in this case. Plaintiff's complaint is explicit
that Rector MacDonell failed to exercise that degree of skill,
care, and diligence that is exercised by pastoral care providers.
Pastoral care provider can only mean one thing. Some
jurisdictions have attempted to characterize the tort of clergy
malpractice as an action for breach of a fiduciary relationship.
The allegation of a breach of fiduciary duty, however, is "simply
an elliptical way to state a clergy malpractice claim." Dausch,
supra, 52 F.
3d at 1428. Plaintiff's third count for breach of
fiduciary duty is explicit that it is only in Reverend
MacDonell's capacity "as pastoral care provider and pastoral
counselor to her" that he breached any fiduciary duty. The
authorities cited by the Court, ante at ___ (slip op. at 13-14)
concern the law of wills, trusts, and property. See Gray v.
Ward, 1
996 WL 364794 at *8 (Mo. Ct. App. 1996) (holding that to
establish a fiduciary relationship under Restatement of Torts and
Missouri law, it must be shown that "[the cleric] possessed or
managed things of value"). Absent such interests,
analyzing and defining the scope of fiduciary
duty owed persons by their clergy (assuming
pastoral relationships were "fiduciary")
would require courts to define and express
the standard of care followed by reasonable
clergy of the particular faith involved,
which in turn would require the Court and the
jury to consider the fundamental perspective
and approach to counseling inherent in the
beliefs and practices of that denomination.
This is as unconstitutional as it is
impossible. It fosters excessive
entanglement with religion.
[H.R.B. v. J.L.G.,
913 S.W.2d 92, 98 (Mo. Ct.
App. 1995).]
If there is some general duty on the part of all fiduciaries to
refrain from sexual conduct with a client, I assume that trust
officers, investment advisors, and real estate agents will be
covered by the Court's strictures.
In previous times, secular leaders exercised temporal power
by divine right. Secular leaders had to be reminded not to
exceed their authority. John Witte, Jr., A New Concordance of
Discordant Canons: Harold J. Berman on Law and Religion,
42
Emory L.J. 523, 531 (1993) (referring to Pope Gelasius'
description of the two swords of authority, one spiritual and one
temporal). In contrast, in this age and in this country secular
leaders exercise temporal power by consent of the governed. The
founders of our republic were profoundly influenced by the
religious conflicts that occurred in the wake of the Reformation.
Adams & Emmerich, supra,
137 U. Pa. L. Rev. at 1561. They
inherited the view that God had instituted two kingdoms, the
heavenly one in which the church exercised its spiritual
authority and an earthly one in which the civil magistrates
exercised temporal authority and were deeply reluctant to allow
one to interfere with the other. "From Roger Williams . . . the
Founders learned that state control of religion corrupted faith."
Id. at 1562.
The long journey toward Roger Williams' dream of two states
in America, one secular and one spiritual, has foundered on the
shores of behavior so incorrect as to cause the Court to lose its
bearings. The Court is not alone in its search for standards for
sexual conduct. In this nation we are currently debating the
proper scope of inquiry into sexual conduct by public officials.
Thomas L. Friedman, Domestic Affairs, New York Times, Op. Ed.
June 12, 1997; see also Editorial, The Other Woman,
148 N.J.L.J.
1170 (June 16, 1997). For this Court now to impose a civil
sanction based on violation of the precepts of the Episcopal
religion would transgress the principles upon which our nation is
founded. Today the Court creates a tort out of a breach of the
tenets of one religion -- tenets with which there is almost
universal agreement. In a future time, breach of the tenets of
another religion not so universally accepted might give rise to
another type of tort -- a result not contemplated by the
constitutional framers.
Plaintiff's counsel stated at oral argument before the trial
court that plaintiff wished only to pursue claims that were
"universally condemned by society."See footnote 2 In this state, if a person
knowingly commits a sexual act with a person incapable of giving
consent, that conduct constitutes a crime. N.J.S.A. 2C:14-2a(5)(b). In her brief, plaintiff argues that by reason of her
condition, she was legally unable to give consent to sexual
relations. Plaintiff is free to pursue a remedy in the civil
courts of New Jersey for such a transgression of law. She has,
however, cast her complaint in a different light.See footnote 3 Absent an
amendment to assert a claim of criminal or illegal sexual
conduct, there is no official state religion in New Jersey that
makes Pastor MacDonell's conduct a tort.
For substantially the same reasons, plaintiff's complaint
against Reverend Fletcher Harper for breach of a pastoral
fiduciary duty should be dismissed. I surmise that the Court is
temporizing by remanding the matter for further proceedings that
can have but one result. See Hester, supra, 723 S.W.
2d at 553
(holding that to adjudicate claim that divulging confidential
communications to church members breached fiduciary duty would
force court to judge "the competence, training, methods and
content of the pastoral function").
To sum up, the First Amendment offers no defense to sexual
crimes or abuse. Conversely, no principle of general civil law
makes it a tort for competent adults to engage in consensual
sexual conduct. The Court makes the pastor's conduct a tort
because he is a cleric. Whatever we may think of the morality of
the acts involved, a breach of the tenets of the Episcopal
religion by one party to a relationship does not give rise to a
tort action. To base a tort action on a breach of religious
doctrine constitutes an establishment of religion in violation of
the First Amendment.
Justice Garibaldi joins in this opinion.
NO. A-125 SEPTEMBER TERM 1996
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
F.G.,
Plaintiff-Respondent,
v.
REVEREND ALEX MACDONELL,
etc., et al.,
Defendants-Appellants.
DECIDED July 22, 1997
Chief Justice Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY Justice O'Hern
Footnote: 1 The Illinois and Delaware Legislatures have specifically exempted clergy from the provisions of its laws regulating the conduct of therapists. See Ill. Ann. Stat. ch. 740, para. 140/1(e) (Smith-Hurd 1997) (excluding from liability "counseling of a spiritual or religious nature" from Sexual Exploitation in Psychotherapy Act); Del. Code Ann. Tit. 24, § 3004(3) (1996) (stating professional counselor regulations are inapplicable to "any person . . . engaged in religious activity of any nature whatsoever"). Footnote: 2 The transcript reads "unilaterally" condemned but "universally" was the undoubted meaning. Footnote: 3 The caption of this case belies the Court's assumption that the complaint is based on secular activities. The complaint is against "Reverend Alex MacDonell in his capacity as former Rector." In light of its disposition, I must assume that the Court intends such references to be deleted in the later proceedings as well as any references to the deposition of the Episcopal Bishop or the tenets of the Episcopal Church.