Recent Developments in New Jersey Regarding Confidential and Privileged Communications

A New Jersey court ruled that some documents maintained by a Catholic Archdiocese were not subject to disclosure in a civil lawsuit.

Church Law and Tax1999-07-01

Confidential and Privileged Communications

Key point. The clergy-penitent privilege is not limited to oral conversations between a minister and counselee. It can apply to letters and other documents that result from a confidential communication between a counselee and a minister who is acting as a spiritual adviser. Examples include counseling notes made by a minister, or letters written by a church member to a minister containing a confession or a request for spiritual assistance.

A New Jersey court ruled that some documents maintained by a Catholic Archdiocese were not subject to disclosure in a civil lawsuit. Two adult brothers sued a priest and their church and an archdiocese as a result of injuries they allegedly suffered when they were sexually molested by the priest some thirty years before. The brothers claimed that the church and archdiocese were legally responsible for the priest’s actions on the basis of negligent selection and negligent supervision. The brothers asked the archdiocese to turn over all documents contained in the files of its “vicar for priests,” along with any other documents regarding sexual misconduct by any priest form the 1960s to the present. The archdiocese insisted that it was protected from turning over these documents on the basis of the clergy-penitent privilege and the first amendment guaranty of religious freedom. In particular, the archdiocese asserted that the files of the vicar for priests “were of a confidential nature of the highest order” because

the vicar for priests serves as a confidant to priests in need. Accordingly, all priests who confide in the vicar for priests do so with an expectation of privacy and confidentiality. The relationship is the same as a confessional matter with any other penitent. Through the vicar for priests, priests in distress seek counsel and support regarding matters related to the stresses and tension involved in ministry.

The vicar for priests stated that he could not turn over information in his files because “such a production would completely undermine the function of the vicar for priests for all present and future priests could never rely on the confidentiality of their consultations with the vicar.”

Clergy-penitent Privilege

Were correspondence and other materials contained in the vicar’s files protected from disclosure by the clergy-penitent privilege? The clergy-penitent privilege is set forth in the following New Jersey statute:

Any communication made in confidence to a cleric in the cleric’s professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric’s professional or spiritual counseling role …. The privilege accorded to communications under this rule shall belong to both the cleric and the person or persons making the communication ….

The court concluded that documents in the vicar’s files containing statements made by the offending priest to the vicar “are protected by the privilege,” since

it is undisputed that the vicar was acting in his professional character, or as a spiritual adviser, when, or if [the offending priest] confided in him respecting the alleged sexual assaults or any other personal or professional matter …. Priests confide in the vicar with the expectation of privacy and confidentiality; the relationship is the same as a confessional matter with any other penitent. Priests in distress seek counsel and support regarding matters related to the stresses and tensions involved in their ministry. Thus … [the vicar] received such communications in confidence as a “confidant to priests in need.” Thus, so long as [the offending priest’s] communications to the vicar were “confessions” or otherwise made with the expectation of confidentiality, these communications are protected against disclosure.

The court cautioned that not every document in the vicar’s files was necessarily privileged. Only those documents reflecting “communications made in confidence” to the vicar while he was acting as a spiritual counselor were protected by the privilege.

First Amendment

Does the first amendment guaranty of religious freedom protect internal church records from disclosure in the course of litigation? Not necessarily, the court concluded. It observed:

[T]he first amendment does not protect a member of the clergy from actions arising out of sexual misconduct that occur during a time when a clergy member is providing counseling to a parishioner. If the first amendment does not shield the clergy from [civil litigation] involving alleged sexual misconduct, it follows that it does not protect against application of [the subpoena power] to uncover relevant material in personnel files related to the alleged sexual misconduct.

Moreover, the maintenance of personnel files, generally speaking, is nothing more than a normal administrative procedure of any organization, whether it be religious or secular. It can hardly be argued that the ordinary maintenance of such files is a practice which is “rooted in religious belief.” Maintenance of the files does not involve religious doctrine. Discovery would not impinge upon the administration of the church or its customs or its practices. There is no usurpation of the decision-making function of a religious organization. Simply put, there is no religious dispute involved in the production of personnel files in the discovery phase of trial. Thus, there is no occasion for the church [or archdiocese] to claim a privilege of nondisclosure under the first amendment.

Application. This case illustrates an important point-the clergy-penitent privilege is not restricted to oral conversations between ministers and those they counsel. It also may protect documents that reflect the substance of privileged communications, such as (1) letters from church members to their pastor that contain confessions or seek spiritual guidance; (2) copies of letters from a pastor in response to a request for spiritual counsel; or (3) counseling notes made by a pastor during or after counseling sessions.

There is one other aspect of this case that is worth noting. The New Jersey clergy-penitent privilege statute quoted above covers “communications made in confidence” between a minister and “individuals, couples, families or groups.” This language is helpful, for it clarifies that the privilege will apply in the context of marriage or family counseling, even though “third persons” are present. Corsie v. Camanalonga, 721 A.2d 733 (N.J. Super. 1998). [The Clergy-Penitent Privilege ]

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