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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.
Sources:
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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