Provost, Melissa A.

English

Seton Hall University Libraries

SURVEYSFIRST AMENDMENT - FREE EXERCISE CLAUSE - CLERIC WHOENGAGED IN SEXUAL ACTS WHILE PROVIDING PASTORAL COUNSELING TOA PARISHIONER CAN BE HELD LIABLE FOR BREACH OF FIDUCIARY DUTY- F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697 (1997).The Supreme Court of New Jersey recently held that a claim of breach of afiduciary duty could be maintained against a cleric for sexual misconduct dur-ing the course of counseling a parishioner. See F.G. v. MacDonell, 150 N.J.550, 696 A.2d 697 (1997). In so holding, the court reasoned that FirstAmendment protection does not extend to the inappropriate actions of clergy-men entrusted with the counseling of parishioners. See id. at 561, 696 A.2d at702-03. The court concluded that a fiduciary duty, instead of a claim forclergy malpractice, could be established without entangling the state in the freeexercise of religion. See id. at 563, 696 A.2d at 703. The court's holding en-ables parishioners to seek redress against their clergymen who violate this rela-tionship.The plaintiff, F.G., was a parishioner at All Saints Episcopal Church inBergenfield, New Jersey. See id. at 556, 696 A.2d at 700. In April of 1992,F.G. sought counseling from the defendant, Reverend Alex MacDonell. Seeid. Defendant MacDonell was the rector at All Saints Church and St. Luke'sEpiscopal Church in Haworth, New Jersey. ("St. Luke's"). See id. ReverandFletcher Harper, the assistant rector at both of these churches, was also namedas a defendant. See id. F.G. alleged that during the course of a counseling ses-sion, the married Reverend MacDonell preyed upon her vulnerability and se-duced her into a sexual relationship. See id. Allegedly, this affair lasted untilthe end of 1993. See id. Although plaintiffs complaint did not divulge ex-plicit details regarding their affair, it apparently did not include sexual inter-course. See id.On March 31, 1994, F.G. met with Harper to discuss what had transpiredbetween her and MacDonell. See id. at 557, 696 A.2d at 700-01. Harper wasaware that F.G. was receiving treatment from a psychiatric hospital and hadtried to commit suicide only five days before meeting Harper. See id. at 557,696 A.2d at 701. Without F.G.'s consent, Harper revealed F.G.'s identity andher inappropriate sexual relationship with MacDonell in a sermon delivered atSaint Luke's on April 17, 1994. See id. In her complaint, F.G. alleged thatHarper painted an untrue picture of the nature of the relationship and twistedseveral of the facts to the detriment of F.G.'s reputation. See id. at 558, 696A.2d at 701.Plaintiff brought suit against both MacDonell and Harper alleging severalcauses of action. See id. at 556-57, 696 A.2d at 700-01. In her complaint,F. G. sought recovery for "clergy malpractice." See id. Further, F. G. allegedthat by engaging in a sexual relationship, Reverend MacDonell had violated1998SETON HALL CONSTITUTIONAL LAW JOURNALtheir "special relationship" and that he "failed to exercise the degree of skill,care and diligence which is exercised by the average qualified pastoral coun-selor provider." Id. at 556-57, 696 A.2d at 700.In addition, F.G. sought recovery from MacDonell for claims for negligentinfliction of emotional distress and a breach of fiduciary duty. See id. F.G.also claimed that Harper breached a duty of care by revealing her identity andthe details surrounding her relationship with MacDonell. See id. at 557, 696A.2d at 700. Similarly, plaintiff sued Harper for a breach of her privacy, neg-ligent misrepresentation, negligent infliction of emotional distress, defamation,and depiction in a false light, and for the breach of a fiduciary duty which heowed her. See id. at 557-58, 696 A.2d at 700-01.F.G. brought suit in the Superior Court of New Jersey. See id. at 550, 696A.2d at 697. The Superior Court dismissed all of the claims against Mac-Donell as well as F.G.'s claim of clergy malpractice and breach of fiduciaryduty against Harper. See id. at 555, 696 A.2d at 700.Plaintiff then appealed the dismissals to the appellate division, which re-versed and remanded the matter to the law division so that the plaintiff couldattempt to prove her claims against the defendants. See id. (citing F.G. v.MacDonell, 291 N.J. Super. 262, 677 A.2d 258 (1996)). From this decision,MacDonell and Harper filed a motion for leave to appeal, which the SupremeCourt of New Jersey granted. See id. (citing F.G. v. MacDonell, 146 N.J.562, 683 A.2d 1159 (1996)).On appeal, the Supreme Court of New Jersey found that the facts of thecase presented a viable argument for breach of fiduciary duty could be estab-lished against a member of the clergy without running afoul of the Free Exer-cise Clause of the First Amendment. See id.Writing for the majority, Justice Pollock pronounced that the thresholdmatter was whether the Free Exercise Clause of the United States Constitutionprotects a cleric from civil liability for a claim of sexual misconduct with a pa-rishioner who has consulted him for counseling. See id. at 558, 696 A.2d at701. The majority determined that the Constitution prohibited courts from be-coming involved in questions surrounding the policies and doctrines of a cer-tain religion, but did not prohibit courts from adjudicating religious disputes.See id. at 559, 696 A.2d at 701. As such, the majority opined that a court maynot make a determination as to the validity of a religious belief, see id. at 559,696 A.2d at 702 (citing United States v. Ballard, 322 U.S. 78 (1944)), but mayapply neutral principles of law to a dispute, so long as that dispute is not basedon religious doctrine. See id. at 559, 696 A.2d at 702 (quoting Elmora He-brew Ctr. Inc. v. Fishman, 125 N.J. 404, 413, 414-15, 593 A.2d 725, 725(1991) and Welter v. Seton Hall Univ., 128 N.J. 279, 293, 608 A.2d 606(1992)).The majority then reviewed other state court decisions which had permitteda civil suit against a clergyman for the effects of purely secular conduct as re-Vol. 8SURVEYSlating to a third party, including intentional torts. See id. at 560, 696 A.2d at701 (citations omitted). The majority distinguished a cleric's purely secularbehavior from that which arises from ecclesiastical matters, finding that a claimcould be sustained based on the former. See id. (citations omitted). JusticePollock also reviewed several decisions where a cleric was sued for intentionaltorts, like fraud, sexual assault, and defamation. See id. (citations omitted).After reviewing those decisions, Justice Pollock concluded that courts have thejurisdiction to resolve claims against clerics for "sexually inappropriate conductin the course of pastoral counseling," without implicating the First Amend-ment. Id. at 561, 696 A.2d at 703.Turning to the facts presented on the record, the court noted that bothMacDonell and Harper testified that Episcopal teachings did not condone asexual relationship between a married pastor and an unmarried parishioner.See id. at 560-61, 696 A.2d at 702. The court also noted that two other Epis-copal officials, Bishop John Spong of the Episcopal Archdiocese of Newark,and Reverend Franklin Vilas, the chairperson of the Standard Commission onClergy Ethics of the Diocese of Newark, supported the defendants' testimonythat the Episcopal church does not sanction improper sexual conduct by itsrectors. See id. at 561, 696 A.2d at 702. Additionally, the court profferedthat MacDonell's conduct was not an expression of a sincerely held Episcopa-lian belief, but instead was an "egregious violation of the trust and confidencethat F.G. reposed in him." Id. Therefore, the court held that the FirstAmendment could not act as a shield for members of the clergy who havecommitted sexual misconduct in the course of counseling a parishioner. See id.at 561, 696 A.2d at 702-03.Next, Justice Pollock addressed the concern that permitting suits againstclergymen would impermissibly entangle church and state in violation of theFree Exercise Clause. See id. at 561, 696 A.2d at 703. The majority ex-plained that the facts of the present case and the issues surrounding it werematters of first impression in New Jersey. See id. Furthermore, the courtnoted that the tort of clergy malpractice had not yet been recognized in anycourt in the United States. See id. The majority commented that a claim ofclergy malpractice required the courts to define a standard of care. See id.The majority opined that this would lead to haphazard results considering thewide array of diverse religions and beliefs. See id. (citing Strock v. Pressnell,527 N.E.2d 1235, 1239 (Ohio 1988)). The court warned that this would man-date courts to define the beliefs of a certain religion and determine whether thecleric at issue acted in accordance with these court-determined beliefs. See id.(citations omitted). However, the court concluded that recognizing the plain-tiffs claim for breach of fiduciary duty, instead of clergy malpractice, wouldnot violate the Free Exercise Clause. See id. at 563, 696 A.2d at 703.Focusing on this distinction, the majority stated that a fiduciary duty ariseswhen one party places trust and confidence with another who is in a superior1998SETON HALL CONSTITUTIONAL LAW JOURNALposition. See id. at 563, 696 A.2d at 703-04. The majority perceived that afiduciary relationship arises when "one person is under a duty to act for or giveadvice for the benefit of another on matters within the scope of their relation-ship." Id., 696 A.2d at 704 (citations omitted). Therefore, the court added, afiduciary owes to the dependant party a duty of care and a duty to exercise rea-sonable skill. See id. at 564, 696 A.2d at 704 (citing RESTATEMENT (SECOND)OF TRUSTS sections 170, 174 (1959)). As such, the justice asserted that any fi-duciary is liable for a breach of the duties which are inherent in the fiduciaryrelationship. See id. (citing RESTATEMENT (SECOND) OF TORTS § 874 (1979)).Justice Pollock then focused on the delicate nature of the relationship be-tween a parishioner and a pastor. See id. The justice stressed that parishionersoften find comfort in their religious beliefs, and seek counseling from theirpastors in times of need. See id. The court reasoned that a pastor who under-takes the responsibility of counseling a parishioner realizes that he undertakes afiduciary duty to his parishioner under these circumstances. See id. As such,the court determined that a clergyman knows or should know of the trust givenby the parishioner and of his dominant position to the parishioner. See id. Insupport of this, the court offered several cases from other state courts whichhave held that a clergyman can be held liable for breach of a fiduciary dutywithout violating the First Amendment. See id. at 564-65, 696 A.2d at 704(citations omitted). Further, the majority held that a claim for a breach of fi-duciary duty, as compared to a claim of clergy malpractice, does not requirethe court to define a relevant standard of care and a breach thereof. See id. at565, 696 A.2d at 704. Justice Pollock articulated that to establish a fiduciaryduty, a plaintiff need only prove that she trusted the pastor from whom shesought counseling. See id. The majority commented that their holding soughtonly to protect the defenseless by offering them a source of recovery and re-dress. See id., 696 A.2d at 705. On the coattails of this analysis, the courtpermitted F.G.'s claim against MacDonell for negligent infliction of emotionaldistress. See id. at 566, 696 A.2d at 705.Next, the court addressed the plaintiffs claims against Harper. See id. Themajority commented that the plaintiffs allegations were based upon the publicdisclosure of the information which she had entrusted to Harper. See id. Thecourt expressed concern that evaluating Harper's letters and sermons at issuewould impermissibly entangle the courts in religious doctrine. See id. at 567,696 A.2d at 705. The majority, however, suggested that if the trial court coulddetermine, in accordance with neutral principles, whether or not these materi-als constituted a breach Harper's fiduciary duty to F.G., then F.G.'s suitagainst Harper could proceed. See id. at 566-67, 696 A.2d at 705 (citing El-mora Hebrew Ctr. v. Fishman, 125 N.J. 404, 414 (1991)). The court therebyinstructed the trial court to conduct a hearing to determine this particular fac-tual issue. See id. at 567, 696 A.2d at 705.In conclusion, the court held that F.G. could maintain her causes of actionVol. 8SURVEYSagainst MacDonell for breach of fiduciary duty and negligent infliction ofemotional distress. See id. Additionally, the court held that plaintiffs claimagainst Harper could continue depending on the trial court's determination atthe end of the Elmora hearing. See id.Justice O'Hern, joined by Justice Garibaldi, dissented from the opinion.See id. at 567, 696 A.2d at 705 (O'Hern, J., dissenting). Justice O'Hern be-lieved that the majority had misapplied First Amendment principles .in permit-ting F.G. to sue a cleric for breach of a fiduciary duty. See id. The dissentrefuted the idea that F.G. should be allowed to sue MacDonell for conduct thatwould not be tortious if he had been a layperson. See id. at 567, 696 A.2d at706 (O'Hern, J., dissenting). Although Justice O'Hern emphasized that a re-ligious cloak would not protect ministers, rabbis or priests that commit criminaloffenses, the dissent believed that clergymen should only be held liable whentheir conduct would be an offense for everyone in our society. See id. at 568,696 A.2d at 706 (O'Hern, J., dissenting). Therefore, the dissent criticized themajority's determination that, although MacDonell's conduct would have beenneither a crime nor a tort had MacDonell been a neighbor in whom F.G.sought comfort, MacDonell nonetheless could be liable for a breach of duty.See id.The dissent warned that assigning a different code of conduct for clergymenwould impermissibly entangle church and state in violation of the FirstAmendment. See id. at 569, 696 A.2d at 706 (O'Hern, J., dissenting). JusticeO'Hern suggested that the majority's decision was erroneous because theholding created civil liability based solely on Episcopalian tenets. See id.Furthermore, the justice stressed that creating the tort of clergy malpracticewould impose liability for conduct that is "outside the scope of other torts."Id. at 570, 696 A.2d at 707 (O'Hern, J., dissenting) (citing Strock v. Pressnell,527 N.E.2d 1235, 1239 (Ohio 1988)).Justice O'Hern also disputed the alleged difference between a claim forclergy malpractice and a breach of fiduciary duty. See id. at 571, 696 A.2d at708 (O'Hern, J., dissenting). The justice interpreted a breach of fiduciary dutyto be "simply an elliptical way to state a clergy malpractice claim." Id. (quot-ing Dausch v. Rykse, 52 F.3d 1425, 1428 (7th Cir. 1994)). The dissent as-serted that even holding clerics to a fiduciary duty would invariably permitcourts to define a standard of care dependent on the faith of the accused. Seeid. at 572, 696 A.2d at 708 (quoting H.R.B. v. J.L.G., 913 S.W.2d 92, 98(Mo. Ct. App. 1995)).Next, Justice O'Hern discussed traditional notions of the separation ofchurch and state. See id. at 572-73, 696 A.2d at 708 (O'Hern, J., dissenting).The dissent noted the significance attached to this separation by the Foundersof our nation as a result of the Reformation. See id. at 572, 696 A.2d at 708(O'Hern, J., dissenting). The justice further articulated that from Roger Wil-liams, the "Founders learned that state control of religion corrupted faith." Id.1998SETON HALL CONSTITUTIONAL LAW JOURNALat 573, 696 A.2d at 708 (quoting Arlin M. Adams and Charles J. Emmerich, AHeritage of Religious Liberty, 137 U. PA. L. REv. 1559, 1562 (1989)). Thejustice then posited that the behavior at issue was so bad that it caused the courtto mistakenly arrive at its decision. See id.Justice O'Hern also analogized the majority's holding to the current debateconcerning a public official's sexual conduct. See id. By allowing this claimto proceed against the defendants, the dissent warned that the majority's hold-ing would fly in the face of long standing legal traditions upon which ourcountry was built. See id., 696 A.2d at 708-09 (O'Hern, J., dissenting). Fi-nally, Justice O'Hern concluded by voicing his concern that the majority'sholding would create a "slippery slope" eroding the protections afforded by theFree Exercise Clause of the First Amendment. See id. at 574, 696 A.2d at709.AnalysisIn F. G. v. MacDonell, the New Jersey Supreme Court permitted a parish-ioner to sue her clergyman who induced her into a sexual relationship duringthe course of pastoral counseling. See id. at 566, 696 A.2d at 705. The courtdeclined to create the tort of clergy malpractice, fearing that it would imper-missibly entangle the state and the courts in a manner that would violate theFree Exercise Clause. See id. at 562-63, 696 A.2d at 703. However, by per-mitting the plaintiff to sue the cleric for a breach of a fiduciary duty, the courtdevised an avenue for redress to parishioners who have been taken victimized.The dissent, however, argued that it would be unfair to allow a clergymanto be sued for acts which would not be tortious if he or she were a layperson.See id. at 574, 696 A.2d at 709. Unfortunately, the dissent failed to perceivethe tangible reality that clergymen are always held to a higher standard in oursociety. They are afforded greater respect, honor, and reverence because theyare, in fact, men of faith. As men representing their respective religious be-liefs, their parishioners often turn to them in times of great need. To condonethe abuse of this privilege and permit clerics to prey upon the weak and de-fenseless would be unconscionable.The First Amendment's Free Exercise Clause should not shield clergymenfor their sexual indiscretions. Trust is an inherent part of the clergyman's rela-tionship with his parishioner. Parishioners need to be able to seek help, com-fort and support from their cleric without the fear that they will become a vic-tim. The New Jersey Supreme Court's holding sends a clear message toclergymen across the state - religious cloth will not shield clergy from thereach of the law. No longer will clergymen be able to hide behind the FreeExercise Clause; instead, clergymen will be held accountable for their actionswhich violate the sacred trust between a cleric and his parishioner.Melissa A. ProvostVol. 8

First Amendment - Free Exercise Clause - Cleric Who Engaged in Sexual Acts While Providing Pastoral Counseling to a Parishioner Can Be Held Liable for Breach of Fiduciary Duty - F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697 (1997).

https://scholarship.shu.edu/cgi/viewcontent.cgi?article=1264&context=con_law

First Amendment - Free Exercise Clause - Cleric Who Engaged in Sexual Acts While Providing Pastoral Counseling to a Parishioner Can Be Held Liable for Breach of Fiduciary Duty - F.G. v. MacDonell, 150 N.J. 550, 696 A.2d 697 (1997).

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