• Key point 10-05.2. Some courts have found churches not liable on the basis of negligent selection for the sexual misconduct of a minister or other church worker involving another adult since the church exercised reasonable care in the selection of the worker.
* A Minnesota court ruled that a church and denominational agency could not be liable on the basis of negligent hiring for the sexual misconduct of a pastor, but could be liable on the basis of a state law imposing liability on the "employer" of a "psychotherapist." Based on his degree from a seminary, references, and a test to determine his doctrinal positions, a young man (Pastor Ted) was licensed as a pastor by a denominational agency (the "regional church"). Pastor Ted's first employment was as an associate pastor. During this assignment, a young woman complained to the senior pastor that Pastor Ted had inappropriately touched her. The senior pastor advised Pastor Ted to have no further contact with the woman. No other church officials were involved and no further action was taken. Pastor Ted later began looking for a position as a senior pastor. The regional church recommended him as a candidate for senior pastor in an affiliated church. Pastor Ted went through the church's selection process and was hired by the church as its senior pastor. The church did not make any inquiries of his former employer. A few years later, a woman ("Vicky") and her family joined the church. When Vicky's husband was diagnosed with a life-threatening illness, she became more actively involved in the church and sought counseling from Pastor Ted. In time, the two began spending large amounts of time together and became involved in a clandestine sexual relationship. A member of the church's board of deacons spoke with Pastor Ted about the poor impression created by his attention to Vicky.
About one month later, Vicky revealed the relationship to a visiting pastor who informed the church's board members. A board member contacted the regional church. Pastor Ted was confronted and admitted the relationship. The church requested and received his resignation, and the regional church revoked his ministerial credentials.
Vicky later sued Pastor Ted, her church, and the regional church. She settled her claims against Pastor Ted, but pursued legal claims against the church defendants for negligent hiring and employer liability under chapter 148A of the Minnesota Statutes (defined below). The church defendants asked the trial court to dismiss the claims against them on the ground that the first amendment bars the civil courts from finding churches liable for their hiring decisions. The trial court denied the church defendants' request, and the case was appealed.
The court agreed with the church defendants that a resolution of Vicky's negligent hiring claim against the church defendants would "entangle" church and state in violation of the first amendment's nonestablishment of religion clause. It observed,
The establishment clause is not implicated where neutral principles of law, developed and applied without particular regard to religious doctrines, establish the applicable standard of care. In this case, even though neutral principles of law can be applied to determine whether a member of the clergy is performing psychotherapy and neutral principles of law can be applied to determine what the church and the council knew or should have known about a pastor's employment history at the time of hiring, the church defendants argue that Vicky's hiring-related claims implicate core, fundamental church doctrines governing identification of individuals "called" to the ministry. We agree. A determination of whether the statutorily required inquiries were made of a pastor-candidate's former employers does not involve church doctrine, but a determination of how that information should be used in a hiring decision would force the court into an examination of church doctrine governing who is qualified to be a pastor. When claims involve "core" questions of church discipline and internal governance, the Supreme Court has acknowledged that the inevitable danger of governmental entanglement precludes judicial review.
chapter 148A of the Minnesota Statutes
Chapter 148A of the Minnesota Statutes imposes liability on the employer of a member of the clergy who performs or purports to perform psychotherapy and who sexually exploits a patient if:
(1) the employer fails or refuses to take reasonable action when the employer knows or has reason to know that the psychotherapist engaged in sexual contact with the plaintiff or any other patient or former patient of the psychotherapist; or (2) the employer fails or refuses to make inquiries of an employer or former employer, whose name and address have been disclosed to the employer and who employed the psychotherapist as a psychotherapist within the last five years, concerning the occurrence of sexual contacts by the psychotherapist with patients or former patients of the psychotherapist.
The regional church insisted that it was not Pastor Ted's "employer," and that the first amendment prohibited the civil courts from rejecting this conclusion. The court disagreed, noting that deciding if the regional church was an employer for purposes of chapter 148A "is not a doctrinal matter, so there is no first amendment barrier to resolution by civil courts." The court remanded the case back to the trial court to determine whether or not the regional church was Pastor Ted's employer.
The church conceded that it was Pastor Ted's employer, but asserted that the first amendment prohibited chapter 148A from being applied to it. The church claimed that a determination of whether Pastor Ted was acting as a psychotherapist would involve excessive entanglement between church and state. The court disagreed, noting that "the statute provides neutral standards to guide the determination. A psychotherapist is defined as a 'member of the clergy … whether or not licensed by the state, who performs or purports to perform psychotherapy.' Psychotherapy is defined as 'the professional treatment, assessment or counseling of a mental or emotional illness, symptom, or condition.' A determination whether a minister was providing services equivalent to psychotherapy, such that he was an unlicensed mental health practitioner for purposes of chapter 148B of the Minnesota Statutes does not excessively entangle the court in religion."
The church also argued that the application of the statute "involves the state telling the church how its ministers shall conduct their counseling sessions with parishioners." Once again, the court disagreed, "But the application of the statute to the church does not create such a danger. Chapter 148A neither prescribes any particular behavior on the part of those providing psychotherapy, nor does the statute require the courts to examine the merits or methods of the psychotherapy provided. The statute imposes liability on an employer for the employer's acts or failure to act, to the extent it was a proximate and actual cause of any injuries sustained. The argument that application of the statute involves the state dictating to the church how ministers conduct counseling sessions with parishioners is without merit."
The court concluded that the church could be liable for Pastor Ted's acts on the basis of negligent retention if it retained him after receiving credible information suggesting that he posed a risk of harm to others. The court observed, "The standard used to determine negligent retention is based on neutral principles of law. The court need not investigate the role of pastor within church hierarchy or the nature of Pastor Ted's employment with the church in order to resolve a claim of negligent retention. The unfitness alleged is the secular act of sexually violating a parishioner, not any alleged unfitness that relates to Pastor Ted's duties as a pastor. The court only need evaluate what the church knew or should have known about his propensity to sexually violate parishioners with whom he was counseling, and, if there was such knowledge, whether the church's actions were reasonable considering the problem …. The negligent retention claim can be accomplished using neutral standards, without regard to religious doctrines."
Application. This case will be a useful precedent for churches to cite in defending against a negligent hiring claim. While not every court will agree with the conclusions reached by the Minnesota court in this case, the court's conclusions were clearly and forcefully stated, and may be followed by courts in other states. On the other hand, the court allowed the case to proceed against the regional church on the basis of chapter 148A of the Minnesota Statutes. Few other states have adopted similar legislation, and so this aspect of the court's ruling will have very limited significance in other states. J.M. v. Minnesota District Council, 658 N.W.2d 589 (Minn. App. 2003).
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