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Erdman (Angela) v. Chapel Hill Presbyterian Church

No. 84998-6 CHAMBERS, J. (dissenting in part/concurring in part) -- I agree with the lead opinion in result but on different grounds. Angela Erdman submitted her claims to a tribunal of a hierarchal church. She is now bound by its decision. However, I cannot agree with the lead opinion that the ministerial exception doctrine plays any role here. Since the beginning of our republic, our courts have strived to protect both the rights of religious institutions to be free of unwarranted governmental interference and the rights of individuals to the protection of the laws. Different courts have adopted different approaches in different cases. The United States Supreme Court has never held that the First Amendment demands only one approach so long as the approach taken avoids judicial resolution of questions of faith and excessive entanglement with religion. But the First Amendment does not vest churches with immunity from criminal or tort liability. While churches have a right to be free from state interference in matters of religious doctrine or faith, no exercise of religious faith condones the sexual exploitation of children. I Taking her allegations as true as we must at this point, Erdman, in her capacity as the Chapel Hill Presbyterian Church's chief financial officer, questioned whether Pastor Mark J. Toone was entitled to be reimbursed out of church funds for
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a complementary plane ticket to Ireland. Ultimately, this question led to her being fired. Pastor Toone had accepted the ticket from a tour company he worked with guiding tours of religiously significant sites around the world. He was compensated by that tour company for his time. As she investigated, Erdman became concerned that Pastor Toone was jeopardizing the church's tax exempt status by using church resources to advertise this paid outside work. She brought her concerns to Pastor Toone who instructed her not to investigate any further and to turn her files over to him. When she would not drop the matter, Pastor Toone came into her office, "angrily told me that I was insubordinate," yelled, shook his finger in her face, was physically intimidating, "got extremely cruel and nasty," told her his tours were none of her business and ended the conversation by storming out of her office and slamming the door. Clerk's Papers (CP) at 322-23. He left her shaken and in tears. Pastor Toone appointed a small "session committee" of Chapel Hill church members to investigate the conflict between him and Erdman. That session committee recommended Pastor Toone fire Erdman, which he did promptly. Meanwhile, Erdman filed a complaint against Pastor Toone with the regional organization of their church. Among other things, she charged that Pastor Toone had sought reimbursement for expenses he had not incurred, harassed and retaliated against her when she questioned him, and violated a large number of enumerated scriptures and church doctrines. In response, the Presbytery of Olympia convened an "investigatory committee," which concluded Erdman's charges of "misuse of church possessions, negligence, and abuse of responsibilities of a minister
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[including] theft and bearing false witness . . . could not be reasonably proved," effectively rejecting her complaint. CP at 137, 848. This suit followed. II The lead opinion states that "a civil court violates both religion clauses when it allows claims of negligent retention and negligent supervision of ministers to go forward." Lead opinion at 27. This statement is breathtaking: it implies that no claim of negligent retention or supervision, no matter how appalling the conduct, could ever go forward against a church based on the misconduct of its clergy. The case the lead opinion relies upon the most, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp't Opportunity Comm'n, __ U.S. ___, 132 S. Ct. 694, __ L. Ed. 2d __ (2012), neither considers that proposition nor supports that conclusion. The United States Supreme Court's flat rejection of the suggestion that courts lack jurisdiction to consider claims against churches suggests to me that the Court, had it considered that proposition, would have rejected it. Id. at 709 n.4. A. Ministerial Exception Doctrine It troubles me that we are considering this issue at all. The church did not argue below that due to Pastor Toone's status as a minister, Erdman's claims should be dismissed. Instead, the church argued that Erdman was a minister and that because of her status, the ministerial exception doctrine barred her claims. The church may be correct. But then-Pierce County Superior Court Judge Worswick denied the church's motion for summary judgment on this issue merely because she did not "have enough facts to determine that [Erdman] is a minister." Verbatim
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Transcript of Proceedings at 24. The church renewed its argument that Erdman's status as a minister barred the claim on appeal, contending that "[b]ecause the Executive for Stewardship position served the Church's spiritual and pastoral mission, the ministerial exception applies to Ms. Erdman's job [and] secular courts lack subject matter jurisdiction over Ms. Erdman's claims." Br. of Resp'ts at 38 (emphasis added).1 The Court of Appeals, properly, affirmed Judge Worswick's conclusion that there was not enough evidence on the record to decide the question. Erdman v. Chapel Hill Presbyterian Church, 156 Wn. App. 827, 837 n.8, 234 P.3d 299 (2010). My review of the record persuades me that conclusion is correct. Whether Pastor Toone's status as a minister would bar these claims was raised for the first time in Chapel Hill's petition for review to this court in the context of whether grounds for review under RAP 13.4(b) were present. See Pet. for Review at 13-14. While we certainly have the power to resolve issues the parties did not properly present or preserve, we generally do not, and we do not for very good reasons. See RAP 2.5(a). Among those reasons: this court is designed to decide arguments properly presented and developed by disputing parties. In this case, neither party has. It would be wise to leave it for another day when it has been vigorously, and actually, litigated. But given that the lead opinion has chosen to go down this path, I will follow it part way. I completely agree that courts have no business interfering with a church's choice of ministers. Schleicher v. Salvation Army, 518 F.3d 472, 475 (7th
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Again, the United States Supreme Court firmly rejected the notion that the ministerial exception doctrine was a jurisdictional doctrine. Hosanna-Tabor, 132 S. Ct. at 709 n.4. 4

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Cir. 2008) (citing Petruska v. Gannon Univ., 462 F.3d 294, 302-08 (3d Cir. 2006)). But it is a far cry from saying that courts have no business interfering with a church's choice of ministers to holding that a church is effectively immune from the consequences of its choices. True, some courts have so held. But many of these courts based their rulings on the principle, since discredited by the United States Supreme Court, that the court lacked subject matter jurisdiction. See, e.g., Fontana v. Diocese of Yakima, 138 Wn. App. 421, 427, 157 P.3d 443 (2007) (dismissing plaintiff's constructive discharge claim for "lack of subject matter jurisdiction"); Gates v. Catholic Archdiocese of Seattle, 103 Wn. App. 160, 169, 10 P.3d 435 (2000) (dismissing employment contract claim for "lack of jurisdiction"). The reasoning in these cases has been rejected by Hosanna-Tabor, 132 S. Ct. at 709 n.4. While the lead opinion cites many cases, it cites only five (out of only three courts) that have found that negligent supervision or negligent retention claims against churches for the conduct of ministers should be dismissed on First Amendment grounds. None of these cases mention the "ministerial exception doctrine" pleaded here, and, not surprisingly given that they go to a theory the parties did not present, none of these cases are mentioned in the parties' briefing. I can certainly see why the church did not cite these cases: in all five cases, the courts dismissed negligent supervision and retention claims against churches for clergy sexual misconduct. Given that we have already allowed cases against churches involving clergy sexual misconduct to go forward, see, e.g., C.J.C. v.
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Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 728, 985 P.2d 262 (1999), I can see why the church might think we would not find them persuasive. In Pritzlaff, the Wisconsin Supreme Court, over vigorous dissents, dismissed Pritzlaff's claims that when she was a high school student, a priest used his position as a priest and counselor to groom her for a sexually exploitive relationship. Pritzlaff v. Archdiocese of Milwaukee, 194 Wis. 2d 302, 307, 533 N.W.2d 780 (1995). The court dismissed the case on the statute of limitations, but none the less went on to consider her specific claims. The Wisconsin Supreme Court also relied on Pritzlaff in dismissing another clergy sexual abuse case cited by the majority, L.L.N. v. Clauder, 209 Wis. 2d 674, 685, 563 N.W.2d 434 (1997), which again drew a vigorous dissent. The lead opinion also relies on an opinion of the Missouri Supreme Court, Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997). There, allegedly, a priest, invited a child to spend the night and sexually molested him. Id. at 243. The parents confronted the diocese about the priest's conduct and were told that `"this happens to young men all the time' and that [their son] `would get over it."' Id. "After hearing of similar incidents between [the priest] and other young boys," the parents filed a nine count complaint against the pastor and the church, including claims of negligent retention and supervision. Id. The Missouri Supreme Court affirmed dismissal of all the claims, reasoning that merely considering the claims constituted "excessive entanglement between church and state [and] has the effect of inhibiting religion, in violation of the First Amendment." Id. at 246-47.
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Finally, the lead opinion cites two cases out of the Southern District of New York that dismissed negligent supervision and retention-like claims, Schmidt v. Bishop, 779 F. Supp. 321 (S.D.N.Y. 1991) and Ehrens v. Lutheran ChurchMissouri Synod, 269 F. Supp. 2d 328, 332 (S.D.N.Y. 2003). In Schmidt, a woman alleged she was sexually abused by a priest when she was 12 years old. The lead opinion discusses language out of Schmidt, the court used in discussing a "clergy malpractice" claim not present here.2 Lead opinion at 15. The New York District Court relied upon this dicta to dismiss claims of negligent hiring, supervision, and retention in a subsequent case of alleged clergy abuse of a child in Ehrens, 267 F. Supp. 2d at 332. My own research (again, unaided by the parties as this is not their theory of the case) shows that many courts (including, implicitly, this court in C.J.C, 138 Wn.2d at 728) have disagreed with Wisconsin, Missouri, and the Southern District of New York courts and have allowed negligent supervision and retention claims to go forward. In yet another sexual misconduct case, one much closer to home, the Colorado Supreme Court concluded that "[t]he First Amendment to the United States Constitution does not grant religious organizations absolute immunity from tort liability. Liability can attach for breach of a fiduciary duty, negligent hiring and supervision." Moses v. Diocese of Colo., 863 P.2d 310, 319 (Colo. 1993) (citing Destefano v. Grabrian, 763 P.2d 275, 284, 286

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