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Posted 26 Mar 2001   For week ended March 16, 2001
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Sent on Mormon-News: 12Mar01

By Kent Larsen

Utah Supreme Court Rules Against Clergy Malpractice Claim

SALT LAKE CITY, UTAH -- A ruling Friday by the Utah Supreme Court is already being called a landmark as the court ruled that the US Constitution's First Amendment prohibits lawsuits over so-called clergy malpractice. The ruling upheld a lower-court decision dismissing a lawsuit against the Church of Jesus Christ of Latter-day Saints. The complainant, Lynette Earl Franco, said that local LDS Church officials defended the youth that she claims molested her at her expense.

The court's ruling said that clergy malpractice cases would "require the courts to review and interpret church law, policies, or practices," and therefore "are barred by the First Amendment under the entanglement doctrine." The court's opinion, written by associate Chief Justice Leonard H. Russon, also said that a court hearing of malpractice charges would "embroil the courts in establishing training, skill, areligious professions widely varying beliefs. This is as impossible as it is unconstitutional."

Franco says that she was abused at age 7 by a 14-year-old boy, another member of her LDS ward. The abuse was so severe that she repressed the memory for 8 years, until 1992 when she was 14 and the perpetrator was ready to serve an LDS mission. She and her parents approached her former bishop, Dennis Casady, and stake president, David Christensen, who advised them to "forgive, forget and seek Atonement," and referred her to an unlicensed counselor, who also urged her to forget the incidents instead of calling police.

But another counselor, who the family consulted, reported the incident to the police. While the police couldn't prosecute because too much time had passed, Franco says that her ward ostracized her, and she eventually left the Church. She filed suit against the bishop and stake president, the Church, the parents of her abuser and the unlicensed counselor and his employer. But 3rd District Judge J. Dennis Frederick dismissed all the claims. Franco then appealed regarding the LDS Church, the bishop and the stake president. The Utah Supreme Court heard the arguments in the case last October.

While the exact extent of the court's ruling is not yet clear, supporters claim that the ruling sends a hands-off message regarding the practices of the clergy. "The decision preserves religious liberty and freedom for all and confirms that lawsuits like these have no merit," said LDS Church spokesman Dale Bills in a Church news release on the case. Defense attorney Edward R. Montgomery agreed that the decision was important, but argues that the decision is wrong, "I think the court has sent a very clear message that no governmental regulations can be placed on the church. I think it is extremely chilling. People who have suffered abuse, like my client has at the hands of the church, now have virtually no recourse."

Some lawyers say that the decision may also have an effect on the state's reporting law, which requires clergy to report abuse, as long as the information doesn't come from the perpetrator. Montgomery says that the decision may make that law unconstitutional, "I think given that ruling, it's very likely that if the reporting statute would be tested, the court would almost be forced to find it unconstitutiona." But attorney Oscar W. McConkie, a First Amendment expert, former Utah state senator and an LDS Church member, disagrees, "I don't see this decision as adding or subtracting to the law of mandatory reporting. (The court's ruling) is not new law. In a country where you have freedom of religion, the state and none of its agencies . . . can dictate to a church and tell the church what standards the state would impose for clerics."

In its statement, the Church also expressed regret for Franco's feelings toward the Church, "We regret that Lynette Earl Franco and her family are unhappy with the church and hope that they can find peace," said Bills in the Church's press release.


Ruling May Bolster Utah Census Suit, Magistrate says state has enough data to press case
Salt Lake Tribune 10Mar01 T1
By Mark Eddington: Salt Lake Tribune

Justices rule in favor of church
Deseret News 11Mar01 N1
By Jennifer Toomer-Cook: Deseret News staff writer
1st Amendment protects clergy from being sued


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