New Jersey Supreme Court Recognizes Tort Action Against Clergy

Gerald J. Russello*

Can a minister be subject to civil liability for engaging in a sexual relationship with a parishioner who sought counseling? Last term, the New Jersey Supreme Court held that a parishioner may bring a breach of a fiduciary duty action in these situations. F.G. v. MacDonell, 696 A.2d 697 (1996), raises important questions about the applicability of legal standards of care to members of the clergy.

The facts are relatively straightforward. In April 1992, F.G. sought counseling from Rev. MacDonell, her parish rector, for a variety of personal problems. Shortly thereafter, the two began a sexual relationship that lasted until the end of 1993. MacDonell was married throughout their affair. In April 1994, F.G. spoke to the assistant rector, Rev. Harper, about MacDonell’s conduct. Harper then apparently reported this conduct from the pulpit during a sermon to the parish as a whole.

F.G. sued both ministers in April 1995, alleging "clergy malpractice," negligent infliction of emotional distress, and breach of fiduciary duty. Against Harper alone, F.G. alleged defamation, false light and breach of privacy. The trial court granted the defendants’ motions on the pleadings, ruling that to allow the action would unduly entangle church and state.

The Appellate Division reversed. Although acknowledging the seriousness of the issues, the court considered "overstated" the concerns over entanglement. Because the nature of the alleged conduct was unlikely to involve evaluation of religious dogma, the court found clergy malpractice a cognizable claim. The court analogized to recognized causes of action against other sorts of professionals, such as accountants or real estate brokers. There was no "impenetrable barrier," the court reasoned, "to establishing a standard of care applicable to cleric-counselors in the context of an allegation" of sexual misconduct.

The defendants petitioned the New Jersey Supreme Court. In a 5-2 opinion written by Justice Pollock, the Supreme Court affirmed the Appellate Division in part and reversed in part, and remanded. The Court held that F.G. could pursue a claim for breach of fiduciary duty against MacDonell. F.G. could also proceed against Harper, if on remand the trial court found that such an action would not result in entanglement with church doctrine. The majority framed the issue as whether "the First Amendment to the United States Constitution shields a member of the clergy from a claim of inappropriate sexual conduct with a parishioner who has consulted the member of clergy for pastoral counseling." Id. at 701. The Court canvassed cases from other jurisdictions that have allowed claims on the basis of a fiduciary duty between clergy and parishioner for certain types of torts. No court, however, has recognized a separate clergy malpractice claim, because of a hesitation to become entangled in religious teaching or to judge clergy by secular standards of care.

The Court found the breach of fiduciary duty cases persuasive, and held that pastoral counseling creates a fiduciary relationship. "By accepting a parishioner for counseling, a pastor also accepts the responsibility of a fiduciary." Id. at 703. Like psychotherapists and their patients, pastoral counselors may be liable for breaches of fiduciary duty toward their parishioners. Id. at 705. The First Amendment, therefore, does not protect a cleric from a breach a duty claim when the cleric’s actions arise in the context of a counseling relationship. "[T]he record supports the inference that MacDonell’s alleged misconduct was not an expression of a sincerely held religious belief, but was an egregious violation" of his duty toward the plaintiff. Id. at 702. The Court recognized deposition testimony presented to the trial court from Episcopal church officials that affairs between married priests and parishioners contravene church doctrine, which the defendants did not dispute. The Court did not address how trial courts would determine whether the cleric’s actions arose from sincerely held religious beliefs. The majority also left unclear its contention that pastoral counseling resembles a secular activity rather than a religious one, which can be examined under the standards applied to secular professionals.

Based in part on the testimony regarding Episcopalian teaching, the majority reasoned that breach of fiduciary duty claims would not raise the same difficulties encountered in clergy malpractice claims. "The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position." Id. at 703. Proof of breach would not require an inquiry into particular religious doctrines or determination of a standard of care. An allegation need require only that the plaintiff trusted and sought counsel from the defendant cleric. Ibid. The Court treated the charges against Harper under the same standard, but found that because the alleged tort occurred while Harper was engaged in a clear religious activity (preaching), more serious constitutional questions were implicated that required further examination by the trial court. Id. at 705. Should the trial court find that the case could proceed without becoming entangled in religious doctrine, Harper could also be exposed to liability.

Justice O’Hern, who dissented in an opinion joined by Justice Garibaldi, concluded that the majority had misunderstood the issue. The defendant clergy were not alleging that their conduct was excusable because immunized by the First Amendment; "rather, F.G. asserts that the conduct is tortious because the defendant is a religious." Id. at 705. Discussion of First Amendment standards is therefore only ancillary to the real issue: whether a cleric can be sued for actions that, outside the defendant’s status, would not be actionable. The basis of the plaintiff’s case was that MacDonell breached a duty of pastoral care towards her. Exploration of that duty necessitates an examination of clerical religious duties. As there is no general duty for other types of fiduciaries to refrain from voluntary sexual relationships with their adult clients, the imposition of liability here rests solely upon the defendant’s status. Indeed, the majority went so far as to say that "but for MacDonell’s status as a clergyman, his conduct was unrelated to religious doctrine." Id. at 705. The dissent closed by stating:

[t]he First Amendment offers no defense to sexual crimes or abuse [but] no principle of general civil law makes it a tort for competent adults to engage in consensual sexual conduct. . . . Whatever we may think of the morality of the acts involved, a breach of the tenets of the Episcopal religion . . . does not give rise to a tort action.

Id. at 709.

Thus this case differs from those in which a clergy commits a crime such as fraud or assault; the crime itself is separate from the clergy’s religious status and covered by generally applicable criminal laws. Likewise, when a cleric takes advantage of those unable to consent, such as children, there is no barrier to imposing civil liability. Breach of fiduciary duty, the dissent reasoned, is only an "elliptical" way of characterizing clergy malpractice and produces the same constitutional difficulties. Id. at 708.

F.G. is troubling because of the pressures it places upon the pastoral counseling relationship, and the interference it permits the courts in ascertaining whether a duty has been breached. By analogizing clergy to secular professionals, the Court has invited trial courts to set the parameters of the relationship between parishioners are clergy. The majority most likely was motivated by strong objection to the kind of activity involved. The opinion, however, is not restricted to specific conduct; under its standard, the possibility remains that even activities such as preaching may be actionable.

Nor does the opinion address the diversity of religious practices. The standard of "trust and confidence in another who is in a dominant or superior position" that the majority adopts is vague at best and may work at all only with those religious faiths that have a formal priesthood. The standard may be difficult to apply to other religious denominations in which the line between clergy and laity is less formalized, or in which the counseling relationship is more fluid.

It is hard to share the majority’s confidence in the low risk of entanglement with religious doctrine in the future. Subsequent cases undoubtedly will turn on whether the alleged conduct was within or without the duties that clergy-fiduciaries now owe to others. To determine exactly when a parishioner and clergy have entered into a formal "fiduciary" relationship, trial courts at the very least will need testimony concerning the clergy-parishioner relationship as it is understood and expressed by the particular faith, as well as the competence and training of the particular clergy-defendant. Even here, paradoxically, the Court relied upon ecclesial testimony to support its reasoning that sexual misconduct claims would not involve judicial examinations of religious doctrine.

*Gerald J. Russello is an associate at Donovan Leisure Newton & Irvine LLP in New York City. Her clerked for Justice Daniel J. O’Hern, New Jersey Supreme Court, 1996-97. The views expressed are solely those of the author.


2001 The Federalist Society