Recent Developments in Washington Regarding Sexual Misconduct by Clergy and Church Workers

A Washington state court ruled that a church official did not have a legal duty to protect persons from the actions of a church member.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax1999-07-01

Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point. A church may have an affirmative legal duty to protect members from harm if a “special relationship” exists between the church and either the wrongdoer or potential victims.

A Washington state court ruled that a church official did not have a legal duty to protect persons from the actions of a church member. A church member (the “defendant”) sought out a bishop in the Mormon Church, and informed him that he had recently been in a fight with two teenage boys and that they had falsely accused him of inappropriate sexual contact. The bishop advised the defendant to be honest with the authorities and to seek the help of an attorney if criminal charges were filed. Several months later, the defendant again met with the bishop, telling him that he had pleaded guilty to misdemeanor assault. At the defendant’s request, the bishop agreed to help him find community service opportunities, as well as to monitor his progress in completing the required community service hours. The bishop then arranged for the defendant to help another church member build a log house. The defendant worked diligently on the log home. After several months, the bishop informed the court that the defendant had completed his community service hours, and the court entered an order terminating his community supervision. While the defendant worked on the log home, he became friends with the other church member who was working on the project, and began dating her 17-year-old daughter. A few months later, the two were engaged. The couple met with the bishop for premarital counseling, and the bishop persuaded the defendant to disclose to his future wife the false accusations that had been against him by the two teenage boys. The couple were later married. Two years later, the defendant was arrested for sexual contact with a teenage boy. Following his arrest, his wife’s brother disclosed that the defendant had sexually molested him. The brother sued the bishop and Mormon Church, alleging that they were responsible for his injuries. Specifically, the brother argued that the bishop had a duty to control the defendant and to prevent him from harming others. He asserted that this duty arose from the bishop’s agreement to monitor the defendant’s performance of his community service hours, and that the bishop breached this duty by failing to fully investigate the nature of the charges against the defendant. The brother insisted that an investigation would have revealed the defendant’s predatory nature, which would have alerted the bishop of the danger of placing the defendant in proximity to young boys.

The court noted that there is no duty to control the conduct of a third person to prevent him from causing physical harm to another unless “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” For such a duty to arise, the relationship between the defendant and the third party must be “definite, established and continuing.” Additionally, a relationship where one “takes charge” of another rises to the level of requisite control for this duty to be imposed: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

The court noted that the bishop volunteered to supervise the defendant’s community service performance. The issue, though, was whether the bishop “took charge” of the defendant by virtue of that supervision. The court concluded that the bishop had none of the responsibilities or functions that demonstrate control:

First, unlike a parole officer who enforces the terms of parole, [the bishop] was responsible only for monitoring [the defendant’s] performance of his community service. Given that [the bishop] was not informed of any other conditions of [the defendant’s] suspended sentence, it cannot be said that he was charged with enforcing or supervising them. Second, when [the bishop] agreed to report the hours that [the defendant] completed, he indicated that he would not physically supervise [the defendant’s] work. Finally, had [the defendant] failed to perform his required community service, [the bishop’s] only recourse would simply have been to report that [he] had not completed his hours. Nothing in the record indicates that [the bishop] could have compelled [the defendant’s] performance. Nor is there anything to indicate that [the defendant’s] failure to perform would have triggered other duties or responsibilities for [the bishop], such as petitioning the court to reinstate [his] sentence. In short, the facts of this case do not indicate that [the bishop] “took charge” of [the defendant].

Absent evidence that the bishop “took charge” of the defendant, no special relationship existed between them. And absent a special relationship, the bishop “had no duty, as a matter of law, to control [the defendant] to prevent him from harming others.” Having failed to establish a duty of protection, the victim could not maintain a negligence claim against the bishop or church.

The court also noted that even if the bishop had “taken charge” of the defendant, and therefore owed a duty to protect the victim, there would be no liability because the abuse occurred at least one full year after the defendant’s community supervision was terminated by court order. As a result, it was “simply too remote in time” to have been caused by the bishop’s allegedly negligent supervision. In summary, even if the bishop had a duty to control the defendant by virtue of his supervisory relationship, that duty “would have ended when the relationship did.”

Application. This case illustrates two very important legal principles that are relevant to every church. First, a church ordinarily has no legal duty to protect members against criminal or other wrongful behavior. However, there are exceptions to this general rule. One exception arises when a “special relationship” exists between the church and either the wrongdoer or the victim. Under such circumstances, a duty may exist to protect potential victims from harm. The courts have reached different conclusions regarding the existence of a special relationship in the context of churches and church workers. This court concluded that the bishop did not have a special relationship with either the defendant or the victim. But it did concede, based on a previous Washington state court ruling, that a special relationship exists between adult church workers and children in the congregation that gives rise to a duty of protection. Funkhouser v. Wilson, 950 P.2d 501 (Wash. App. 1998) (addressed in a feature article in the July-August 1998 issue of this newsletter). The court in the previous decision concluded: “We believe that churches and the adult church workers who assume responsibility for the spiritual well being of children of the congregation, whether as paid clergy or as volunteers, have a special relationship with those children that gives rise to a duty to protect them from reasonably foreseeable risk of harm from those members of the congregation whom the church places in positions of responsibility and authority over them.” In summary, the bishop had no special relationship with the defendant in this case, but the court conceded that church employees and volunteers who are in official positions of instruction or supervision involving children do have a special relationship with those children that gives rise to a duty of protection. Courts that follow this ruling will be more likely to find a church legally responsible for injuries to children, even if unexpected. They also will be more willing to find a “duty to protect.” Such a duty imposes upon church leaders an even greater responsibility to screen and supervise workers, and to take other steps to reduce the risk of harm.

Second, the court concluded that even if a special relationship existed between the bishop and defendant giving rise to a duty to protect others from harm, this duty ended when the special relationship ended. In other words, the bishop no longer had a duty to protect when he ceased to be involved in the court-sanctioned supervision of the defendant. Such a ruling can be used by churches that are sued because of the misconduct of a former member or youth worker. Sometimes a former volunteer worker or employee molests or injures another person, and the victim claims that the church is responsible. According to this court, such a church would have no legal obligation to protect others from the former volunteer or employee after his or her position was terminated. This will be a useful precedent to churches that are sued on account of the wrongs of a former worker. Flanigan v. McCrae, 1999 WL 58767 (Wash. App. 1999). [Negligence as a Basis for Liability]

© Copyright 1999 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m67 m86 c0499

Legal Developments

Recent Developments in Washington Regarding Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax1999-03-01

Sexual Misconduct by Clergy and Church Workers

Richard R. Hammar, J.D., LL.M., CPA

• Key point. Minors who are sexually molested by church workers may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on a minor’s 18th birthday. In some states the statute of limitations is suspended if a church “actively conceals” the basis for a lawsuit from a victim. But some courts have ruled that when a pastor molests a child, the pastor’s “active concealment” of his behavior cannot be imputed to his church. As a result, the statute of limitations for suing the church is not suspended by the pastor’s actions.

• Key point. Minors who are sexually molested by church workers may not sue their church after the statute of limitations has expired. Generally, the statute of limitations begins to run on a minor’s 18th birthday. In some states the statute of limitations does not begin to run until an adult survivor of child sexual molestation “discovers” that he or she has experienced physical or emotional suffering as a result of the molestation. Other states do not recognize this so-called “discovery rule.”

A Washington state court ruled that the statute of limitations prevented an adult male from suing his church and a denominational agency for injuries he suffered as a child when he was molested by his pastor. A church hired a new pastor in 1985. Within a few months, the pastor became close friends with a married couple in the church. The pastor helped the wife to obtain a job as church secretary. Later in 1985, the couple’s 14-year-old son (the “victim”) was sexually molested by the pastor on a camping trip. The victim felt “humiliated, embarrassed, scared.” After the first incident, the victim began having recurring nightmares about the sexual abuse, but he did not tell anyone. The sexual abuse continued regularly for the next four years. On one occasion, when they were supposed to be at a church function, the pastor took the victim to a hotel room, where he molested him. The abuse also occurred in the pastor’s home, at the church, and in automobiles. During those four years, the victim believed that the sexual abuse was wrong and that it was causing him harm, but he was unable to stop it. On at least one occasion, when the pastor tried to abuse him in a motel room, the victim begged him to stop because “it is killing me.” During the period of sexual abuse, the victim made three suicide attempts. On one of these occasions the pastor began to molest the victim while the victim was driving a car. The victim accelerated and drove the car into a tree to stop the emotional pain caused by the pastor’s abuse. The victim did not tell his parents that the pastor had abused him until 1993 (three years after the pastor left the church). He was reluctant to tell his parents because he felt scared and humiliated and because the pastor had told him not to tell anyone. Once the pastor warned him that people were “asking questions” and investigating and that he must not tell anyone. He reminded the victim of what would happen if he disclosed the abuse-the pastor would lose his family and his job, and the victim’s mother would lose her job as church secretary.

The victim’s parents became increasingly concerned that something was seriously wrong with their son. They were also concerned about the amount of time their son was spending with the pastor. They suspected that the pastor was molesting their son, but they could not prove it and their son refused to acknowledge it. In 1990, the victim’s parents made a formal complaint to their church, insisting that the church investigate the pastor. To support their complaint, the parents submitted a letter alleging several specific incidents of misconduct. In response to this letter the church board conducted a hearing and took written and oral testimony from a number of witnesses. Because of concerns related to his previous suicide attempts, the parents did not tell their son about the hearing nor did they ask him to testify. Since the victim did not come forward at the hearing, the church board took no action against the pastor.

In 1993 the victim and his parents sued the pastor. They also sued their church and a denominational agency, alleging negligent hiring, supervision, and investigation of the pastor. The trial court dismissed the church and denominational agency from the lawsuit on the ground that the statute of limitations had expired. The court allowed the victim to sue the pastor under a more liberal statute of limitations that applies to suits brought against the actual perpetrators of sexual abuse. The victim and his parents appealed, and a state appeals court agreed that the lawsuit against the church and denominational agency was barred by the statute of limitations. The court noted that under Washington law the victim had until his twenty-first birthday to sue the church and denominational agency for the sexual abuse that occurred while he was a minor. Since the lawsuit was not filed until the victim was twenty-two, it was filed too late.

The Discovery Rule

The victim and his parents insisted that the court should apply the “discovery rule,” which in some states postpones the statute of limitations until a victim of child sexual abuse “discovers” that his emotional injuries are associated with the abuse. The court noted that even if it applied the discovery rule, the lawsuit was still filed too late:

The common law discovery rule would not apply to [the victim’s] claims against the local church and the state office because the record clearly shows, and the trial court so found, that while still a minor [he] clearly knew the facts of the abuse relevant to establish a claim …. [He] knew he was being sexually molested by [his pastor] …. He knew the molestation was wrong, knew it was causing him substantial harm, as he attempted suicide.

“Concealment”

The court conceded that the statute of limitations may be suspended or postponed when “plaintiffs could not have immediately known of their injuries due to … concealment of information by the defendant.” The victim’s parents claimed that the statute of limitations did not begin to run on their claims until 1993 when their son told them the pastor had molested him. The parents argue that before this conversation they could not have learned of their cause of action. The court disagreed, noting that while there was substantial evidence that the pastor concealed important information from the parents and from the church, “there is no evidence that the local church or the state office concealed anything from the [parents].” Further, the court noted that the statute of limitations would have begun to run no later than July of 1990, when the parents submitted their letter to the church demanding an investigation of the pastor. This letter proved that by July of 1990 the parents had a concrete belief that the pastor had abused their son and that the church and denominational office were partly to blame. The court noted that the 1990 letter listed several specific instances of abuse perpetrated upon their son by the pastor. Further, “even if the parents did not have a reasonable suspicion of the facts supporting their claims, they have not shown that, with due diligence, they could not have known of their cause of action before 1990 …. In sum [the parents] have not shown that they did not know, and could not have known, of their causes of action against [the pastor], the local church, and the state office before 1990.”

Application. This case illustrates an important principle-when a pastor molests a child, the pastor’s “active concealment” of his behavior cannot be imputed to his church. As a result, the statute of limitations for suing the church is not suspended by the pastor’s actions. The victim may sue the pastor directly, but not the church. E.R.B. v. Church of God, 950 P.2d 29 (Wash. App. 1998). [Seduction of Counselees and Church Members, Negligence as a Basis for Liability, Denominational Liability]

Legal Developments

Recent Developments in Washington Regarding Confidential and Privileged Communications

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax1999-01-01

Confidential And Privileged Communications

Richard R. Hammar J.D., LL.M., CPA

• Key point. Statements made between a pastor and counselee may be protected by the clergy-penitent privilege even if other persons are present, so long as the statements cannot be heard by the other persons.

A Washington court ruled that the clergy-penitent privilege applied to confidential statements made to a pastor, and that the privilege was not waived when the pastor disclosed the communications to two others. A distraught mother contacted a pastor and asked him to meet with her son. The pastor, who was not acquainted with either the mother or son, drove to the son’s apartment where he was introduced by the mother as “the preacher.” The mother remained in the apartment during the pastor’s “spiritual” consultation with her son which lasted about an hour. The pastor met with the son on at least two other occasions before the son turned himself over to the police. One meeting took place at an army medical center, where the son was accompanied by his mother, wife, and several others, and the other at a friend’s home. The pastor later shared the substance of the son’s communications with two colleagues. The son was later charged with second degree murder for the death of his three-month-old son. The state alleged that the son caused the child’s death by violently shaking him.

The prosecutor asked the trial court to determine whether the clergy-penitent privilege applied to the son’s statements to the pastor. The trial court ruled that the privilege did not apply since the son had not sought out the pastor as a matter of church “discipline.” The court then ordered the pastor to appear for a deposition so that he could be questioned about his meetings with the son. At the deposition, the pastor refused to answer questions regarding the content of those conversations based upon his constitutional right to religious freedom. The trial court ruled that the pastor had no constitutional right to refuse to testify, and informed him that he would be sent to prison for contempt of court if he refused to testify. The pastor appealed the trial court’s ruling.

Availability of the Clergy-penitent Privilege

The Washington state clergy-penitent privilege states that “[a] member of the clergy or a priest shall not, without the consent of a person making the confession, be examined as to any confession made to him or her in his or her professional character, in the course of discipline enjoined by the church to which he or she belongs.” The pastor argued that he cannot be compelled to testify because his conversations were privileged. The state asserts that the privilege is unavailable because (1) the “course of discipline” of the pastor’s religion does not “enjoin” its members to make individual, private confessions of sins, (2) the son was not enjoined by any church doctrine to make a confession, and (3) the son’s conversations with the pastor were not confidential.

The court agreed with the pastor that confidential statements made to him by the son were protected by the clergy-penitent privilege. The court conceded that the privilege applies only to “confessions,” but it concluded that the son’s statements to the pastor were confessions because the pastor “considered those communications to be such.” The court also noted that the privilege refers to confessions that are made in the course of church discipline. The court interpreted this requirement to refer to “the rules or practices of the religion to which the clergy member belongs.” It continued: “The statute does not require that the communicant be enjoined by his or her religion to confess or to seek spiritual counseling. Rather, the statute requires only that the clergy member receiving the confidential communication be enjoined by the practices or rules of the clergy member’s religion to receive the confidential communication and to provide spiritual counsel.” The court concluded that the pastor in this case “felt enjoined by his religion to receive [the son’s] penitential communications and to provide [him] with spiritual counsel.” As a result, the pastor’s religion “constrains him to provide confessors with spiritual counsel and the opportunity for redemption. It is a duty that the pastor must fulfill based upon the tenets of his faith.”

The court acknowledged that the son was not a member of the pastor’s church, and was not constrained by the doctrine of his church to make a confession, but it concluded that this did not matter. The privilege applies to a “person” making a confession and not a “parishioner” or “church member.” The communicant “need not be a member of any particular church or faith, let alone the clergy member’s church or faith, requiring the communicant to confess.” The court stressed that “we are not concerned with the communicant’s reasons for speaking to the clergy member; we only determine whether the clergy member’s practice enjoins the clergy member to receive the communication.” Therefore, the fact that the son was a member of the pastor’s church did not negate the privilege.

Waiver of the Privilege

The state asserted that the son’s conversations with the pastor were not privileged because they were not confidential. The state noted that the mother was in the apartment during the pastor’s initial meeting with her son, and that other individuals were present during the pastor’s other visits with him. Further, the pastor shared the contents of the son’s communications with two of his colleagues.

The court noted that whether a communication is confidential “turns on the communicant’s reasonable belief that the conversation would remain private.” The court pointed out that while the mother was present in the apartment, there was no proof that she was in the room the entire time that her son spoke with the pastor. To the contrary, the pastor claimed that he spoke confidentially with the son at his apartment outside of the mother’s presence. The pastor also insisted that he spoke privately with the son during each of his other meetings with him, even though others were present for part of the time. The court concluded that those portions of the conversations that occurred outside of the presence of any third person were privileged. It cautioned that the son’s communications to the pastor “are confidential only to the extent the conversations were outside the presence of others.”

The court sent the case back to the trial court, and instructed it to regard as privileged any statements made to the pastor while the son and the pastor were alone. But it also instructed the court to require the pastor to disclose any statements made to him by the son “in the presence of a third party, unless the third party was another clergy member or other person needed to aid the communication.”

What about the fact that the pastor shared the son’s communications with two of his colleagues? Did this have the effect of “waiving” the privilege? No, concluded the court. It noted that the “communicant is the holder of the privilege, and only the communicant can waive it.”

Application. What is the significance of this case? Consider the following: (1) The case demonstrates the importance of confidentiality in preserving the clergy-penitent privilege. This does not necessarily mean that no third persons are present. But if other persons are present, then a court may conclude that only those statements shared between a pastor and counselee outside of the hearing of the other persons who were present will be covered by the clergy-penitent privilege. (2) This case rejects an earlier Washington court ruling that limited the clergy-penitent privilege to confessions made to Catholic priests. State v. Martin, 959 P.2d 152 (Wash. App. 1998). [The Clergy-Penitent Privilege , The Clergy-Penitent Privilege ]

© Copyright 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m33 c0199

Legal Developments

Church Designated as “Historic Landmark”

Court rules that designation violates religious freedom.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Church Property, Freedom of Religion

Key Point. City ordinances that allow church buildings to be designated as historical "landmarks" may violate the constitutional guaranty of religious freedom.

The Washington Supreme Court ruled that a city's designation of a church as an "historic landmark" violated the church's constitutional right of religious freedom.

Many cities have enacted ordinances giving the city council the authority to designate buildings as landmarks. Such a designation may prohibit the landowner from modifying or selling the building. When these ordinances are applied to churches, a serious conflict with the constitutional guaranty of religious freedom can result.

This was the issue confronting the Washington Supreme Court in an important ruling. A Methodist church in downtown Seattle was erected in 1909. In 1985 the building was designated as a landmark by the city, and the church was informed that it was prohibited from making any alterations or significant changes to the church's interior or exterior without city approval, unless "such changes were necessitated by changes in the liturgy." Church leaders decided to demolish the building, sell the land for commercial development, and use the proceeds to build a smaller sanctuary on another site.

They noted that the congregation had diminished significantly in recent years due to the development of hospitals, highways, and commercial buildings in its immediate vicinity. The church asked a court to strike down the landmark ordinance on the ground that it violated the constitutional guaranty of religious freedom. A trial court ruled that the city could never designate the church building as a landmark, and the city appealed.

A state appeals court ruled that the city could designate the church as a landmark so long as it refrained from imposing any limitations on the use of the property while the church used it for primarily religious purposes. The appeals court permitted the church to demolish its sanctuary only if it replaced it with a new building devoted to religious use on the same property. The church appealed this ruling to the state supreme court, arguing that these limitations were unduly restrictive and that it had a constitutionally protected right to demolish the building and sell the land for commercial development.

The state supreme court agreed, noting that the landmark ordinance violated the church's constitutional rights of speech and religion and therefore it could be sustained only if it furthered a compelling governmental interest. No such interest existed, the court concluded. The court noted any attempt to delay implementation of the landmark regulations until the church ceased to use the property primarily for religious purposes did not help.

The court pointed out that the phrase "primarily for religious purposes" is ambiguous, and that it would entangle the courts in deciding what is "religious." For example, what if the church elected to use the property for a soup kitchen, homeless shelter, child care center, counseling center, or retreat? Are these activities religious? Should the city have the sole authority to make this decision, even if contrary to the church's position?

On the other hand, the court refused to hold that all landmark designations of churches are unconstitutional. It noted that some churches are not opposed to landmark status and some even desire it. Therefore, designation of a church as a landmark will be impermissible only if there is a demonstrated burden on the church's exercise of religion. In this case, the landmark designation severely burdened the church's exercise of religion because it prevented the church from selling its property and using the proceeds to advance its religious mission. First United Methodist Church v. Hearing Examiner, 916 P.2d 374 (Wash. 1996).

Legal Developments

Assumption of Risk and Release of Liability

Release form signed before a man’s death prevents his family from suing.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax 1994-03-01 Recent Developments

Releases from Liability

Richard R. Hammar, J.D., LL.M., CPA

• Key point: “Release forms” signed by competent adults will be recognized by the courts in some states, and will prevent one who signs such a form from suing specified persons or organizations for negligence.

• A Washington court ruled that the family of a college student killed during a scuba diving activity was prevented from suing the college or scuba instructor by a release form signed by the student prior to his death. A college student enrolled in a scuba diving class and signed a “release of liability” form that specified:

I understand and agree that neither [the college nor my instructors] may be held liable in any way for any occurrence in connection with this diving class that may result in injury, death, or other damages to me or my family, heirs, or assigns … and further to save and hold harmless said program and persons from any claim by me, my family, estate, heirs, or assigns, arising out of my enrollment and participation in this course.

It is the intention of [the student] by this instrument to exempt and release [the college and instructors] from all liability whatsoever for personal injury, property damage or wrongful death caused by negligence.

The student also signed an “assumption of risk” form that specified:

In consideration of being allowed to enroll in this course, I hereby personally assume all risks in connection with said course, for any harm, injury or damage that may befall me while I am enrolled as a student of the course, including all risks connected therewith, whether foreseen or unforseen.

During one dive the student panicked when he noticed the air in his tank was low, and died of air embolism resulting from too rapid an ascent. His family sued the college and his instructor. A trial court dismissed the case on the basis of the release and assumption of risk forms that the student had signed, and the parents appealed. A state appeals court agreed with the trial court’s dismissal of the case. The court’s decision contains an excellent discussion of the legal effectiveness of releases and assumption of risk forms that will be instructive to church leaders. The court began its opinion by acknowledging that “a release is a contract in which one party agrees to abandon or relinquish a claim … against another party,” and that release agreements “are strictly construed and must be clear if the release from liability is to be enforced.” The court also stressed that “the general rule is that a pre-injury release of the employer from liability also releases the employee.” As a result, the student’s release of the college had the effect of releasing the instructor (even if the instructor had not been specifically named in the release).

The court agreed with the family that a release will not be enforced if it violates “public policy.” However, the court noted that under Washington law, a release agreement will not violate public policy unless it involves a “public interest.” By this the court referred to activities of such great importance to the public as to amount to a “practical necessity for some members of the public” and to be “suitable for public regulation.” The court observed that “extended discussion is not required to conclude that scuba diving does not involve a public duty.” It also referred to other court decisions that had concluded that mountaineering, motorcross racing, sky diving, and dirtbike racing do not involve a public interest.

The court acknowledged that a release form only releases organizations and individuals from their ordinary negligence, and not from their gross negligence. However, the court added that “evidence of negligence is not evidence of gross negligence; to raise an issue of gross negligence, there must be substantial evidence of serious negligence.” The court concluded that there was no evidence of gross negligence in this case other than the unsupported allegations of the family.

Finally, the court addressed the assumption of risk form signed by the student. The family argued that the assumption of risk form their son signed was unenforceable since he did not specifically assume the risks of negligent instruction and negligent supervision. The court disagreed. It observed that the legal doctrine of assumption of risk “is surrounded by confusion …. Express assumption of risk bars a claim resulting from risks actually assumed by the plaintiff; implied primary assumption of risk bars a claim resulting from specific known and appreciated risks. One who participates in sports impliedly assumes the risks which are inherent in the sport.” The court noted that the student had signed an assumption of risk form in which he assumed “all risks” associated with his scuba diving class. The court continued:

Negligent instruction and supervision are clearly risks associated with being a student in a scuba diving course and are encompassed by the broad language of the contract. That [the student] may not have specifically considered the possibility of instructor negligence when he signed the release does not invalidate his express assumption of all risks associated with his participation in the course …. [K]nowledge of a particular risk is unnecessary when there is an express agreement to assume all risk; by express agreement a plaintiff may undertake to assume all the risks of a particular situation, whether they are known or unknown to him.

This case demonstrates the legal enforceability of releases and assumption of risk forms signed by competent adults in some states. The court did recognize at least two situations in which such releases are not enforceable—when a public interest is involved, and if death or injury is attributable to gross negligence. Note that this case did not deal with release forms signed by parents on behalf of minor children. Boyce v. West, 862 P.2d 592 (Wash. App. Div. 3 1993).

© Copyright 1994, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m62 c0294

Legal Developments

Church Buildings as Historical Landmarks

Designation of a church as a landmark may violate the First Amendment.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Church Property

Key point: City ordinances that allow church buildings to be designated as historical "landmarks" may violate the constitutional guaranty of religious freedom.

The Washington Supreme Court ruled that a Seattle ordinance that allowed city officials to designate a church building as a "landmark," thereby limiting a church's authority to sell or modify its building, violated the constitutional guaranty of religious freedom.

The city of Seattle adopted an ordinance giving the city authority to declare any building to be a landmark. The ordinance was designed to preserve and protect those sites reflecting significant elements of the city's cultural or historic heritage. Buildings designated as a landmark by the city could not be structurally altered without city approval. The city designated a church to be a landmark, and the church sued the city arguing that the landmarks ordinance violated the church's constitutional right to freely exercise its religion.

Specifically, the church claimed that its designation as a landmark impaired its religious freedom in the following ways: (1) city approval and bureaucratic "red tape" would be required prior to making any structural alterations in the sanctuary; (2) a secular government had the authority to grant or deny a church's request to develop its worship facility; (3) the value of the church property was decreased significantly by the landmark designation; and (4) the ability of the church to sell its property was diminished.

A trial court rejected the church's claims, but the case was then appealed directly to the state supreme court which agreed with the church's position. However, the United States Supreme Court later "vacated" the Washington Supreme Court's ruling and ordered it to reconsider the case in light of the recently decided Smith case.

In Smith, the United States Supreme Court repudiated a longstanding rule that a government practice that interferes with the free exercise of religion must be supported by a compelling government interest to be valid. Presumably, the Supreme Court assumed that the Smith case would require the Washington Supreme Court to reverse its previous ruling. Such was not the case.

The Washington Supreme Court ruled that the Smith case did not compel a reversal of its prior ruling in favor of the church. It based this conclusion on two considerations. First, the landmarks ordinance was not a neutral law of general applicability. Second, the court relied on the Smith case itself, in which the Supreme Court concluded that the "compelling government interest" requirement would still be required in "hybrid" cases involving not only freedom of religion but also a second constitutional right.

In this case, the court concluded that the city's landmark designation law violated not only the church's first amendment right to freely exercise its religion, but also its first amendment right of free speech since a church building is itself "an expression of Christian belief and message" that is "freighted with religious meaning." Since the city's landmark law burdened two of the church's constitutional rights, it had to be supported by a compelling government interest.

Such an interest, the court concluded, simply did not exist: "We hold that the city's interest in preservation of aesthetic and historic structures is not compelling and it does not justify the infringement of [the church's] right to freely exercise religion. The possible loss of significant architectural elements is a price we must accept to guarantee the paramount right of religious freedom." The court also concluded that its decision was mandated by the Washington state constitution, which contains a broader protection of religious liberty than that contained in the federal constitution. First Covenant Church v. City of Seattle, 840 P.2d 174 (Wash. 1992).

Legal Developments

Employers’ Liability for Sexual Harassment

A Washington court recently ruled on this matter.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Employment Practices, Sexual Harassment

Church Law and Tax1992-11-01Recent Developments

Employment Practices

Richard R. Hammar, J.D., LL.M., CPA

• A Washington state appeals court ruled that the Catholic Archdiocese of Seattle was liable for handicap discrimination and negligent supervision of a supervisor who sexually harassed a female employee. The archdiocese maintains a conference facility that hired a female housekeeper. A few years later, the archdiocese hired a male as director of maintenance at the facility. The housekeeper alleged that the new maintenance director began sexually harassing her shortly after he began his job. The harassment consisted of numerous sexually explicit and offensive statements. The maintenance director eventually was fired. At about this same time, the housekeeper injured her hand while working, and had to have surgery. Following the surgery, the housekeeper returned to work for a brief time before she underwent a second surgery. When she left for this second surgery, she alleged that her new supervisor assured her that there “would always be a place for her” at the conference facility and that another employee would fill her position only on a temporary basis. Eight months later, the housekeeper was released by her doctor to return to work. When she returned to work, she was informed by her supervisor that her position had been filled after she had been absent for 60 days. She was not notified of any other job openings nor offered any other jobs with the archdiocese, even though there were 3 job openings at the conference facility following her discharge. The housekeeper sued the archdiocese, alleging handicap discrimination and negligent supervision of her former supervisor who had sexually harassed her. A jury awarded her $150,000 in damages, and the archdiocese appealed. A state appeals court upheld the jury’s verdict. In upholding the handicap discrimination portion of the verdict, the court noted that once the employee demonstrated that she was handicapped, and that she was qualified to fill vacant positions, then the burden “shifts” to the employer “to demonstrate a nondiscriminatory reason for refusing to accommodate” the employee. The court noted that the housekeeper had established that she was handicapped (because of her hand injury), and that 3 job openings later occurred that she was qualified to fill. Accordingly, the archdiocese then had the duty to demonstrate that it had a valid nondiscriminatory reason for not “accommodating” the housekeeper by taking affirmative measures to notify her of the job openings. The court insisted that when an employee becomes handicapped on the job, the employer has a continuing duty to inform the employee of job openings beyond the termination of the employer-employee relationship—until such time as “such attempts to accommodate become an undue burden rather than a reasonable requirement.” Since the archdiocese failed to notify the former employee of these job openings, and failed to demonstrate a nondiscriminatory reason for not doing so, the former employee had proven her claim of handicap discrimination. Finally, the court also upheld the jury’s conclusion that the archdiocese was liable for the former supervisor’s sexual harassment of the housekeeper on the basis of its “negligent supervision” of him. The archdiocese had claimed that the state workers compensation law provided an exclusive remedy to the former employee for her work-related injuries (including sexual harassment) that prevented her from suing for negligent supervision. The court rejected this argument, noting that the workers compensation law is an exclusive remedy only with respect to injuries that “arise naturally out of employment.” Sexual harassment, noted the court, “does not arise naturally out of employment because the physical proximity of victim and harasser occurs in the workplace only coincidentally.” This case is important for the following reasons. First, it suggests that employers (that are covered by handicap discrimination laws) may have a continuing duty to notify a former employee of job openings after the termination of the employer-employee relationship, if the former employee became disabled in the course of his or her employment. Second, the case demonstrates that religious employers can be liable on the basis of negligent supervision for the sexual harassment inflicted by their employees. This makes it essential for churches and denominational agencies to implement a sexual harassment policy. Tips on developing such a policy were discussed in a feature article in the March-April 1992 edition of this Church Law & Tax Report newsletter. Wheeler v. Catholic Archdiocese of Seattle, 829 P.2d 196 (Wash. App. 1992).

© Copyright 1992, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m43 m66 c0692

Legal Developments

When Cities Violate Churches’ Constitutional Rights

Court concludes that churches in this situation are entitled to monetary damages.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Zoning

Church Law and Tax 1992-09-01 Recent Developments

Zoning

Richard R. Hammar, J.D., LL.M., CPA

• Another court has concluded that a religious organization is entitled to monetary damages if a city violates its constitutional rights. A religious organization applied for a conditional use permit to construct a building on its property. A city official denied this application, and the organization promptly filed a second application. This application also was denied, and this denial was affirmed by the city council. The organization appealed to a local trial court, which declared the city’s actions to be in error. The organization then filed a third application for a conditional use permit, and this application was denied by the same city official. When the city council upheld the denial of this application, the organization filed another lawsuit. This time, the organization demanded monetary damages on the ground that the city’s actions had violated its constitutional rights. Specifically, the organization alleged that the city’s actions violated its constitutional right to due process of law. The basis for the organization’s claim for monetary damages was title 42, section 1983 of the United States Code (a federal civil rights statute, often referred to simply as “section 1983”), which specifies:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state … subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ….

A trial court ordered the city to issue the building permit, but denied the organization’s request for monetary damages under “section 1983.” The organization appealed, and the Washington state supreme court ruled that the organization’s constitutional rights had been violated by the city’ actions, and that the organization was entitled to monetary damages. Even more significantly, the court ruled that the organization was entitled to a summary judgment on the issue of monetary damages. This means that the court found the organization’s demand for money damages to be so clearly authorized by law that it refused to submit the question to a jury. In concluding that the organization’s constitutional rights had been violated by the city’s repeated denial of a building permit, the court observed: “Along with the vast majority of federal courts, we recognize that denial of a building permit, under certain circumstances, may give rise to a substantive due process claim …. Such a violation is made out, however, only if the decision to deny the permit is ‘invidious or irrational’ or ‘arbitrary or capricious.'” The court concluded that the city’s actions in denying the building permit satisfied this standard. In particular, it pointed to the fact that the city’s decisions were “without consideration and in disregard of the relevant facts and circumstances.”

This case is important since it illustrates the availability of monetary damages under “section 1983” for a city’s violation of a church’s constitutional rights. The importance of such rulings cannot be overstated—for they represent a recognition of an extremely potent weapon that is available to churches. City officials cannot violate a church’s constitutional rights with impunity. Note that this case did not involve the constitutional guaranty of religious freedom. Rather, the organization alleged that its constitutional right to due process of law has been violated. The court concluded that this constitutional right is violated by the arbitrary denial of a building permit. Church officials should keep “section 1983” in mind when confronted by government officials who seem to act in an arbitrary and capricious manner. Lutheran Day Care v. Snohomish County, 829 P.2d 746 (Wash. 1992).

Screening for Child Care Workers

Washington is enacting a law requiring fingerprint checks for certain child care workers.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Employment Practices

Church Law and Tax 1992-07-01 Recent Developments

Legislation

Richard R. Hammar, J.D., LL.M., CPA

• The Washington legislature has enacted a law requiring certain child care workers to have fingerprint checks. The new law begins with the statement that “the legislature finds that additional safeguards are necessary to ensure the safety of Washington’s school children” and that “the results from state patrol record checks are more complete when fingerprints of individuals are provided, and that information from the federal bureau of investigation also is necessary to obtain information on out-of-state criminal records.” Accordingly, the legislature enacted the following law:

School districts, educational service districts, and their contractors hiring employees who will have regularly scheduled unsupervised access to children shall require a record check through the Washington state patrol criminal identification system … and through the federal bureau of investigation before hiring an employee. The record check shall include a fingerprint check using a complete Washington state criminal identification fingerprint card. The requesting entity shall provide a copy of the record report to the applicant. When necessary, applicants may be employed on a conditional basis pending completion of the investigation. If the applicant has had a record check within the previous two years, the district or contractor may waive the requirement. Section 28A.400 of the Revised Code of Washington.

While this legislation will not directly apply to churches, it does illustrate the concern being expressed by a state government over the risk that some child workers pose to children. A number of other states have enacted similar laws.

Manslaughter Convictions for Parents Who Relied on Prayer to Heal Child

Parents may not endanger their children to follow religious beliefs.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax 1992-05-01 Recent Developments

Freedom of Religion

Richard R. Hammar, J.D., LL.M., CPA

• A Washington state appeals court upheld the first degree manslaughter conviction of a parent who unsuccessfully relied on prayer for the healing of his minor child. The victim’s parents were members of a religious group known as the “No Name Fellowship.” Members were encouraged to use spanking as a means of “getting right with God.” All physical illnesses were thought to be caused by sin. Members were taught that the medical establishment was “wicked” and that members should rely exclusively upon prayer for healing the sick. A 10-year-old boy whose parents were members of the group began losing weight and exhibiting other abnormal symptoms. A church “elder” determined that the boy’s illness was a result of sin, and he ordered the boy to be severely spanked. Following an hour-long session of “ministering” (which consisted of intense interrogation and spanking), the boy’s condition continued to worsen. The father continued slapping and spanking the child, and consulting with the elder for guidance. The elder assured the father that the boy would be alright. The boy died the next morning. He was completely emaciated and weighed only 46 pounds. It was determined that he died of untreated juvenile diabetes that had been aggravated by his frequent beatings. The boy’s father was prosecuted, and convicted, of first degree manslaughter. The father appealed, claiming that his conviction violated his constitutional right to religious freedom. A state appeals court rejected the father’s claim, and upheld his conviction. The court observed: “[The father] was free under the Washington State Constitution to believe [his son] could be healed through prayer. He was not free to act o that belief in a manner jeopardizing the health of his child. We find no constitutional violation.” The court quoted with approval from a 1944 decision of the United States Supreme Court: “The right to practice religion does not include liberty to expose the child to ill health or death …. Parents may be free to become martyrs themselves. But it does not follow that they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.” State v. Norman, 808 P.2d 1159 (Wash. App. 1991).

Legal Developments

Amendment of Church Documents

A court ruled that a church’s articles of incorporation could not be amended without the pastor’s approval.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Church Records

Church Law and Tax 1991-01-01 Recent Developments

Constitutions, Bylaws, and Charters

Richard R. Hammar, J.D., LL.M., CPA

• The Washington Supreme Court ruled that a church’s board of elders was powerless to amend the church’s articles of incorporation without the pastor’s approval. In 1967, a pastor organized a church. The church bylaws provided that the pastor was “recognized as the spiritual overseer of the church, ordained and appointed by God for the ministry and to shepherd the flock.” The church’s articles of incorportion specified that (1) the church would not have voting members; (2) the affairs of the church would be managed by a board of elders; (3) the church board consisted of three elders, plus the pastor who was designated the permanent chairman (he could not be removed from office while living); and, (4) neither the articles nor the bylaws could be amended without the pastor’s approval. The bylaws specified that the pastor would serve for life unless he decided to leave, and that pastor could “veto” any action of the board. For 20 years, there were no problems with this arrangement. However, in 1987, allegations of sexual misconduct on the part of the pastor surfaced. One elder testified that the pastor admitted to 27 acts of adultery over a period of 16 months. These alleged incidents resulted in lawsuits being filed against the church. In the midst of this turmoil, the pastor signed a statement agreeing to “step aside” as pastor while the board conducted hearings into the allegations. The board (without the pastor) conducted a series of hearings which lasted for 5 hours a day for several weeks. At the conclusion of these hearings, the board adopted a resolution placing the pastor on “special status.” This meant that he could resume his duties as pastor of the church, but he would not be permitted to be alone with any females. The board explained its action by stating that it was attempting to protect the church, and themselves, against additional lawsuits. This decision was announced to the church congregation in a special meeting. The pastor refused to accept this special status or to honor the board’s decision. Instead, he announced to the congregation that he was not under the authority of the elders and that he would resume his role of pastor without restriction. He also denied that any of the alleged acts occurred as a result of his “spiritual condition.” The board convened a meeting with the pastor in an attempt to reach a compromise. When it was clear that no agreement was possible, the three board members met without the pastor at another location and voted to amend the articles by removing the provision requiring the pastor to approve all amendments to the articles. They also voted to remove the pastor from office because of his breach of his “fiduciary duties” to the corporation. The pastor immediately filed a lawsuit asking a civil court to determine whether or not the elders had the authority to amend the articles without his approval. A trial court ruled in favor of the elders, and the pastor appealed. The state supreme court ruled in favor of the pastor. It reasoned that the articles clearly specified that they could not be amended without the pastor’s approval, and that as a result the elders’ attempt to amend the articles without the pastor’s approval was null and void. The court observed: “Neither of the parties has called to our attention any case holding that any corporation law in the country, profit or nonprofit, prohibits a provision in the articles of incorporation requiring the concurrence of a special individual to amend the articles.” The court agreed that the church’s articles “might well, in retrospect, be viewed by some as an improvident provision,” but it concluded that “it is not the function of this court … to protect those who freely chose to enter into this kind of relationship.” The court did acknowledge that while it rejected the elders’ attempt to amend the articles without the pastor’s approval, “we point out that this does not necessarily defeat the effort by the board to oust the [pastor]” since “the issue of breach of fiduciary duty still remains to be considered by the trial court.” Two justices dissented from the court’s ruling. They lamented that the court’s ruling “eliminates the board’s authority to protect the interests of the church and makes the board inoperative. The pastor’s veto power over the actions of the board impermissibly allows one director to grind the wheels of the corporation to a halt.” The dissenters also claimed that the pastor’s written agreement to let the board conduct hearings into his alleged sexual misconduct amounted to a “waiver” of his veto power over the board’s decision. For now, the case will proceed to trial on the issue of the board’s authority to remove the pastor because of his alleged breach of his fiduciary duties to the corporation. Any developments will be reported in future editions of Church Law & Tax Report. Barnett v. Hicks, 792 P.2d 150 (Wash. 1990).

© Copyright 1991, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m34 m56 m28 c0191

Legal Developments

Designation of a Church as a Historical Landmark

This designation may violate churches’ constitutional rights.

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Church Property

Can a city prevent a church from altering its sanctuary by designating it a "landmark"?

That was the issue before the Washington Supreme Court in an important ruling. The city of Seattle adopted an ordinance giving the city authority to declare any building to be a landmark. The ordinance was designed to preserve and protect those sites reflecting significant elements of the city's cultural or historic heritage. Buildings designated as a landmark by the city could not be structurally altered without city approval.

The city designated a church to be a landmark, and the church sued the city arguing that the landmarks ordinance violated the church's constitutional right to freely exercise its religion.

The supreme court began its opinion by emphasizing that its decision "will be welcomed throughout the United States" since it would be the first decision to address the application of city landmark laws to churches. The court noted that for a church to establish a violation of its constitutional right to freely exercise its religion, it must demonstrate that "the government has placed a substantial burden on the observation of a central religious belief or practice" and that the government's conduct is not justified by a "compelling governmental interest."

The court concluded that the city's landmark law did place a substantial burden on the church's religious practices, and that no compelling governmental interest justified the burden: "The practical effect of the [ordinance] is to require a religious organization to seek secular approval of matters potentially affecting the church's practice of its religion." This "creates unjustified governmental interference in religious matters of the church and thereby creates an infringement on the church's constitutional right of free exercise."

The court concluded: "We hold that the preservation of historical landmarks is not a compelling state interest. Balancing the right of free exercise [of religion] with the aesthetic and community values associated with landmark preservation, we find that the latter is clearly outweighed by the constitutional protection of free exercise of religion and the public benefits associated with the practice of religious worship within the community."

What this means for churches

What is the significance of this case? An increasing number of cities are adopting landmark laws, and it is certain that many churches will be designated "landmarks." Churches that at first are honored to be designated "landmarks" often come to regret the designation when they realize the substantial decrease in the value of their property and the legal restrictions that apply to the alteration, demolition, or sale of their property. There is now an important legal precedent available to churches wishing to avoid these negative consequences. First Covenant Church v. City of Seattle, 787 P. 2d 1352 (Wash. 1990).

Legal Developments

Child Abuse – Part 2

Church Law and Tax 1989-05-01 Recent Developments Child Abuse Richard R. Hammar, J.D., LL.M., CPA

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Counseling

Church Law and Tax 1989-05-01 Recent Developments

Child Abuse

Richard R. Hammar, J.D., LL.M., CPA

• Can a diocese and bishop be sued for damages resulting from the alleged sexual molestation of minors by a Catholic priest? That was the issue before a Washington state appeals court in a recent case. In 1984, a Catholic diocese in Louisiana suspended a priest from performing his “priestly duties” after he admitted to sexual misconduct with minors. The priest was asked to leave the diocese and he eventually was admitted (with the approval of the diocese) to the Jesuit House in Spokane, Washington. A representative of the Louisiana diocese noted that “because of the nature of the complaints, we did not want to take any chances of him just running free. We had no police control over him. We could not lock him up or anything like that. So, we had to leave him in a place where he could have some supervision and a place to stay.” Just prior to the priest’s discharge from the Jesuit House, the diocese informed him that his “options in the ministry were severely limited if not nil,” and that “because of the possibility of legal action and the responsibility on the part of any institution that might hire you, I think realistically that for Church employment you are a very poor risk.” The diocese further advised the priest that he would not be permitted to perform priestly duties upon his release, and that he was not to return to the diocese. Following his release from the Jesuit House, the priest accepted a job as a counselor of adolescents in an alcohol/drug rehabilitation center in a private hospital. He was terminated from this job because of complaints of sexual abuse by former patients. Eight adolescents and one adult sued the hospital, the priest, as well as his diocese and bishop. The plaintiffs alleged that the diocese had negligently supervised the priest, and that it should have warned the private hospital of his pedophilia. The appeals court agreed that “an employer may be held liable for acts beyond the scope of employment because of its prior knowledge of the dangerous tendencies of its employee.” The diocese argued that it could not be liable for the misconduct of the priest, since his actions did not arise out of his priestly duties and accordingly were not within the scope of his employment relationship with the diocese. In rejecting this claim, the court observed that “the duty of obedience which [the priest] owed the diocese encompassed all phases of his life and correspondingly the diocese’s authority over its cleric went beyond the customary employer/employee relationship …. Despite his employment with [the hospital], the employment relationship between [the priest] and the diocese continued.” The court sent the case back to the trial court to determine whether the diocese had been negligent in supervising the priest, and whether it should have warned the hospital of his pedophilia. If the courts of Washington ultimately determine that the diocese was negligent for not having warned the hospital of the priest’s pedophilia, then this would suggest that church denominations (and even local churches) may be at risk if they are aware that a minister is a pedophile but do nothing to warn a prospective employer (religious or otherwise) of the individual’s pedophilia. Further developments in this case will be reported in future issues of Church Law & Tax Report. Does 1-9 v. Compcare, Inc., 763 P.2d 1237 (Wash. App. 1988).

© Copyright 1989, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m10 m67 m40 m86 c0389

Legal Developments

Evidence

Church Law and Tax 1989-03-01 Recent Developments Evidence Richard R. Hammar, J.D., LL.M., CPA •

Richard R. Hammar, Attorney, CPA

Bio

State: Washington

Church Law and Tax 1989-03-01 Recent Developments

Evidence

Richard R. Hammar, J.D., LL.M., CPA

• The “Golden Rule” has been used by many attorneys in an attempt to justify large jury awards in civil lawsuits. Here’s how it works. Let’s assume that Mark has been seriously injured due to the negligence of Acme Company. Mark’s lawyer, in attempting to help the jury place a dollar value on Mark’s pain and suffering, asks the jurors to “place yourselves in Mark’s position, and award an amount of money that you would desire if you had been the victim.” This approach is referred to as the “Golden Rule argument,” and it generally is viewed as improper. For example, in a recent case, the Supreme Court of Washington observed: “The biblical Golden Rule states a standard of conduct for individuals: do unto others as you would have them do unto you (Luke 6:31). Generally, references by counsel to the Golden Rule, or other allusions to the rule such as urging jurors to place themselves in the position of one of the parties to the litigation, or to grant a party the recovery they would wish themselves if they were in the same position, constitutes an improper Golden Rule argument. Such an argument is improper because it encourages the jury to decide the case on the basis of personal interest and bias rather than on the evidence.” Adkins v. Aluminum Company of America, 750 P.2d 1257 (Wash. 1988).

Legal Developments

Refusal to Permit Students to Meet on School Premises for Bible Study and Prayer Did Not Violate the Equal Access Act or the Guaranty of Religious Freedom

A federal district court in the State of Washington ruled that a public high school's

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Freedom of Religion, Schools

A federal district court in the State of Washington ruled that a public high school's refusal to permit students to meet on school premises for Bible study and prayer did not violate either the Equal Access Act or the constitutional guaranty of religious freedom.

Under the Equal Access Act, a public high school having a "limited open forum" may not deny access to school premises to any noncurriculum-related, student-initiated groups on the basis of the religious content of their speech. Schools create a limited open forum by allowing any noncurriculum-related student groups to meet on school premises during noninstructional hours.

This law, concluded the court, did not apply in the present case since the school had not created a limited open forum. While several student groups met on school premises, all of them were curriculum related and school sponsored. The court also observed that even if the school had created a limited open forum by allowing noncurriculum-related student groups to meet on school premises during noninstructional hours, the Equal Access Act still would have been of no benefit to students seeking permission to use school property for religious purposes since such use of public school facilities would have violated the Washington state constitution, and "the Equal Access Act itself provides that a state need not break its own laws in order to observe [the Act's] requirements."

The state constitution, concluded the court, "requires a far stricter separation of church and state than the federal constitution." Finally, the court ruled that the students' constitutional right to freely exercise their religion had not been abridged by the school's policy, since students were free to meet on private property for Bible study and prayer, and the school's policy was mandated by the nonestablishment of religion clauses in both the state and federal constitutions. Garnett v. Renton School District, 675 F. Supp. 1268 (W.D. Wash. 1987)

Legal Developments

School Not Responsible for Damages Resulting from an Alleged Sexual Relationship Between a Teacher and Student

Can a church school be legally responsible for damages resulting from an alleged sexual relationship

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Child Abuse, Schools

Can a church school be legally responsible for damages resulting from an alleged sexual relationship between a teacher and student? This was the difficult question confronting a Washington state appeals court in a recent case.

The student's parents sued the school and church for "negligent hiring" and "negligent supervision." The court rejected both allegations. With regard to the school's alleged negligent hiring, the court observed that "the hiring process employed by the school suggests it took reasonable care in hiring [the teacher] …. The process appears sufficient as a matter of law to discover whether an individual is fit to teach at [the school]."

With regard to the school's alleged "negligent supervision," the court agreed that "schools have a duty to supervise their students," and to take precautions to protect students from dangers that may reasonably be anticipated. However, "at some point the event is so distant in time and place that the responsibility for adequate supervision is with the parents rather than the school." Such was the case here, concluded the court, since the alleged misconduct occurred off school property during noninstructional hours.

The court also rejected the argument that the school had breached an implied promise to provide a "competent and morally fit faculty." Scott v. Blanchet High School, 747 P.2d 1124 (Wash. App. 1987)

Legal Developments

Civil Courts May Never Interfere in the Selection of Clergy

Ambiguous wording in a church constitution or bylaws frequently leads to internal disputes. Such was

Richard R. Hammar, Attorney, CPA

Bio

State: Washington
Categories: Church Business Meetings

Ambiguous wording in a church constitution or bylaws frequently leads to internal disputes. Such was the case in a recent controversy in Washington. A Lutheran church's constitution provided that "the candidate receiving the majority of all votes cast shall, upon unanimous approval, be declared elected."

The church convened a congregational meeting to vote on a pastoral candidate, and the candidate received a majority of the votes cast (but not "unanimous approval"). The candidate was subsequently employed, and a group of dissidents filed a lawsuit in which they asked a civil court to enforce the church's constitutional requirement of "unanimous approval."

While noting that the first amendment prohibits a court "from entangling itself in matters of church doctrine or practice," the court concluded that it could resolve controversies, such as this one, involving the interpretation "of an ambiguous provision in what amounts to a contract between the members of the congregation, dealing with a purely procedural question" and involving "no ecclesiastical or doctrinal issues."

The court also noted that it found no "dispute resolution process" within the denomination to which it could defer. A dissenting judge, quoting several passages of Scripture (Numbers 11:16-17; Matthew 9:35-38; Matthew 28:18-20; John 20:19-23; Acts 6:2-7; 2 Corinthians 3:6; Ephesians 4:7-12; Hebrews 5:1-10) characterized the selection of clergy as an ecclesiastical process in which the civil courts may never interfere. Organization for Preserving the Constitution of Zion Lutheran Church v. Mason, 743 P.2d 848 (Wash. App. 1987).