*1 and Edna DESTEFANO Robert Petitioners, Destefano, and Diocese of

Dennis GRABRIAN Respondents. Springs,

Colorado

No. 86SC336. Colorado,

Supreme Court

En Banc. 17, 1988.

Oct.

Rehearing Denied Nov. *2 appeals decision which affirmed

court of against re- of their claims the dismissal (Grabrian), spondents Dennis Grabrian priest, and Diocese of Catholic Colorado *3 (diocese), Springs granted summary and Grabrian, judgment. Destefano J., (Colo.App.1986)(Sternberg, dissenting). granted We certiorari two 13-20-202, 6A issues: whether section (1987) (heart statute), balm bars an person against a assumes the role of counselor when coun- relationship seling results consensual and sexual relations between a counselor counselee; and the free whether exer- amendment to cise clause first prohibits United States Constitution tort liability for conduct which arose in the con- counseling relationship text of a between a congrega- clergyman and members of his appeals court of tion. The reached the right affirming result in the dismissal of Edna’s fifth crossclaim and Robert’s first upon claims for Based and second relief. record, the defendants’ motions should considered to be motions for not have been Accordingly, summary judgment. we af- Goldstein, P.C., Peter A. Colorado part, part, result in firm the reverse and Springs, petitioner for Robert Destefano. appeals the case to the court of return Ranson, Yukawa, P.C., Rich- Thomas & remand directions to to the trial court for Ranson, Springs, petition- ard for Colorado proceedings consistent with further this er Edna Destefano. opinion. Kane, Donley, Kane and Thomas K. Colo- Springs, respondent rado for Dennis Grab- I. rian. Enoch, Dix, Winslow, Sparks, Suthers & naming complaint filed a as de- Robert P.C., Suthers, L. Martin Nuss- John W. Edna; Grabrian, a fendants his wife Catho-

baum, Springs, respondent Di- Colorado diocese; priest lic and diocese. Springs. ocese of Colorado complaint later filed an amended Robert which named and the diocese Grabrian ERICKSON, Justice. against sought and no relief as defendants Subsequently, Edna. Edna filed an answer Plaintiff-petitioner Robert Destefano (Robert) which directed to crossclaimant-petitioner Edna and crossclaim1 was (Edna) sought original complaint. Destefano review structured, Warren, (W.D.Wis. pleadings F.Supp. 1. As are now Robert is Kennan asserting 1971). respond a claim Edna. Robert did Edna’s answer and crossclaim pursuant drop to C.R.C.P.21 to file a motion complaint. allegations original We to the Consequently, Edna a defendant. no court grave procedural irreg concerns about the defendant, drop order was entered to Edna as a appear record ularities that in the skeletal party. and she remains a See United States v. we crossclaims on this case but consider Edna's Bank, (10th Wyoming 505 F.2d 1064 Cir. Nat. addressed both certiorari since issue was 1974); Dep't Zarate v. State Health & Rehabil appeals. court and the court of the district Servs., (S.D.Fla.1971); F.Supp. itation that his intimate Grabrian knew Edna.” filed motions to Grabrian relationship probably would with Edna failure a claim dismiss for to state mar- of the Destefano cause dissolution granted. can C.R.C.P. relief motion, were told Robert Edna riage. 12(b)(5).2 considering we act as their mar- that he would allegations of Grabrian required to construe the they could trust riage counselor and favorable to pleadings light most involvement him. Grabrian’s continued assume that the plaintiff, and must by reck- relationship occasioned complaint this contained in Robert’s rights feel- disregard Robert’s cross-complaint are less in Edna’s true. continuing Educ., ings. The diocese owed a v. Board Abts Arnold, similarly situated to (Colo.1980); Robert others Bell v. *4 interview, train, supervise reasonably and (1971). Wheth- P.2d engaged counseling cou- priests married any of Robert’s Edna’s claims are er and ples. on With actual or constructive knowl- only by be a trial true can resolved indiscretions, edge prior Accordingly, agree with the of Grabrian’s merits. willfully recklessly its and diocese and breached appeals in the court of hold dissent resulted in an summary judgment duty. not have Grabrian’s conduct that should Grabrian, relationship between Grabrian and granted. v. 729 intimate been Destefano to the dissolution of whether the dis- Edna that contributed P.2d 1018. issue is dismissing marriage. Destefano court erred in Robert’s trict and Edna’s crossclaims for failure to claims upon allegations, Based these Robert upon may a claim which relief state sought exemplary compensatory and dam- granted. (1) against ages negligence for: Grabrian complaint alleges that in Rob- for the manner in which he conducted the counseling and having problems were marital the diocese on the ert and Edna respondeat marriage theory superior failing them to counsel- which led seek monitor, train, supervise ing from Grabrian. The Destefanos were and Grabrian ade- quately; who had “faith and confi- intentional infliction of emo- both Catholics parish priest.” in their distress dence Grabrian’s tional and diocese; supervisors or should have known both Grabrian and the and knew marriage duty. he was unsuited for counsel- breach of Due Grabrian’s jeopar- alleged to a ing and “would cause harm to the willful and reckless nature of actions, and relationship.” comply marital To Grabrian’s the diocese’s Rob- dized marriage requested damages regarding exemplary church doctrine ert under with divorce, pa- encouraged its claim for and each relief. participate marriage coun-

rishioners crossclaim, In her Edna the fol- seling. lowing facts that we will assume be true counseling considering During the course of the rela- the motions to dismiss. Educ., tionship, developed relationship Abts v. Board Grabrian P.2d 518. Edna, prompted which knew Marital with “Grabrian difficulties Destefa- professional known would lead additional nos to seek assistance of should problems marriage through Mary’s marital between and counselor St. [Robert] Savio, (Colo.1985); appeals court of Grabrian’s 2. The treated and Co. Airport Auth., Field, 12(b) Enger C.R.C.P. v. Walker Colo. Pub. the diocese’s motion to dismiss as 253, 256-57, summary judgment a motion for under C.R.C.P. The trial court the claims dismissed 12(b). and Edna No Robert under C.R.C.P. affi- Here, the trial court admitted truth of the sup- davits or other materials were submitted to factual and determined that port Grabrian's the diocese’s motion and by claims asserted both Robert Edna did undisputed. are A the factual issues motion upon legally cognizable not state a which granted. Churchey to dismiss can be considered as a motion Adolph relief can be Co., summary judgment (Colo.1988), when affidavits Coors for an P.2d 1336 apart pleadings presented analysis summary judgment disputed matters and not excluded the court. Travelers fact issue. Ins. internal by the into the stan- sion courts juris- under Church, which Catholic The trial court also of the church. met dards The Destefanos of the diocese. diction Grabrian, are pro- claims repre- that the Destefanos’ stated two occasions 13-20-201, 6 professional with hibited section to be a sented himself panel A of the court of people need divided necessary to assist skills counseling. Grabri- the trial court con- appeals affirmed professional couple. aas and Edna’s agreed them Robert’s an to assist cluded both Robert that Thereafter, informed were the heart balm stat- Grabrian claims barred own counselor. Grabri- he should seek his ute. capa- he Edna that was a represented to re- II.

ble, who could be professional trained her with serious assist lied contend Robert and Edna problems she was ex- personal marital and by section 13- their claims are not barred trust him to that she could periencing, statute), 20-202, (1987)(heart balm 6 C.R.S. trust- in her interests. She fact act best provides: “All civil causes his advice. Grabrian ed him and followed marry, of promise for breach alienation would conduct with Edna knew that his conversation, affections, criminal se *5 dissolution of her collapse result in and the hereby abolished.”3 In duction the marriage, cause Destefanos and would Musim, Goldberg v. permanent emotional suffer- extreme and (1967), issue addressed the of ing. impair a framed as an complaint whether “extremely vul- Knowing that Edna in fact a ment of action was claim contract began re- emotionally,” Grabrian a nerable prohibited by for alienation of affections lationship turned adulter- Edna which 13-20-202, with predecessor to section sec the due of Grabrian. Grabri- 41-3-1, ous to the actions said: tion We engaged had in sexual rela- repeatedly an agree the trial court when it We with similarly tions with other women situated. complaint sets concluded that this forth past conduct was known or Grabrian’s what in law claim for alienation of is a known to the diocese. should have been injury in such an affections. The action and the The actions of Grabrian is one of of affection and consor- loss compensatory entitled Edna to and exem- tium, society, including compan- loss of of plary damages for their breach required ionship and The action aid. duty, negligence, conduct. of part a defendant such case is plain- simply inducing spouse granted the motions of trial court or, left, dismiss, leave, having tiff to once to Grabrian and the diocese find- separated plaintiff. that remain from the issues raised Destefa- questions necessarily involves intent in- inextricably “are linked to nos doctrine, spouse usage separate.... duce the theology, the and customs [T]he place Church, laws, complaint written facts in ... of the [Catholic] organization squarely them within the abolished ac- fundamental tion, alleged rises out for all of a Church.” The trial court concluded that no relationship, to sepa- inducement compelling interest intru- i.e. an state warranted three, together, usually lump that: or to them 3. Professor Prosser has noted affections,” under the "alienation of name enticement, conversation, alien- Criminal possi- any attempt distinguish the without ation still are often treated as of affections ble elements of the tort. torts, good separate is no but there reason Prosser, Law W. Handbook Torts represent distinguishing They them. three (4th 1971). at 876-77 ed. aspects forms of interference with of the same may agree well be no While we that there interest, may and of course all three relational good distinguish reason alienation affec- present When in the same case. the action conversation, tions, conversation, seduction criminal proof is for of entice- criminal other, necessary to each we think it do so from go ment to increase the or alienation will balm statute enumerates damages, here because the heart true. and the converse is likewise separately. tendency each There is now a decided to confuse skill, diligence degree of care and society, resulting loss of loss rate and pro- by members of the same exercised services, suffering pain, and humiliation. fession, practicing the same or similar (citations at 701 omit- Id. at light present state locality, however, ted). did not state that Goldberg, alleges that science. Plaintiff medical of the abol- include elements all cases that in sexu- engage induced her defendant In must be dismissed. ished actions pre- him her part al relations plaintiff’s Goldberg we noted therapy. We no reason scribed see transfer of her hus- for fraudulent of mal- distinguishing type between this property appropriately was more band’s others, improper practice and such as sepa- action for plaintiff’s parallel heard in a defective drug administration of did state that rate maintenance. We situation, operation. In each the essence statutory property claim fell within the departure claim is the doctor’s ban. proper prac- medical standards of Here, appeals relied court tice. Han, Mich.App. Nicholson v. 540-41, Id. 300 N.W.2d at 628-29. (1968), hus- N.W.2d 313 a case which a focused on the Other courts family sued the doctor who had been band complaint and have critical elements functioning as a counselor despite permitted recovery presence improvement in warranted claims which have been abolished. Gas plaintiff marital relations. After Inc., Md.App. per Lighthouse, divorced, plaintiff learned his wife were (1987), denied, 311 Md. 533 A.2d 1358 cert. com- that his wife and the defendant had 537 A.2d 272 a husband sued relationship during the menced a sexual *6 marriage counselor and the counselor’s em Although counseling. of the com- course ployer, asserting and breach of contract fraud plaint language was drafted in the of result rela tort claims as a of the sexual contract, the was dis- and breach of case his wife the counselor tionship between and prohibited falling missed as within the ac- while he his wife were occurred and affections, seduction, of alienation of tions counseling. stated undergoing The court criminal conversation. that the: Michigan Appeals The Court of later the of of actions for alienation [A]bolition held, Kambly, Mich.App. Cotton v. and criminal conversation does affections (1980), that the aboli- N.W.2d person maintaining not preclude a from tion of claims for seduction did not bar of action or a traditional breach contract plaintiff’s malpractice against her recognized merely tort because action psychiatrist engage induced her who had improper the arose from an liai- breach guise the in sexual activities under of ther- plaintiff's spouse son with the or because Nicholson, apy. distinguished The court one the or tor- effect of breach stating malpractice that the issue of was disruption conduct was a or break- tious appeal since never raised in that case the up pre- marriage. his or her What is of the on the from trial court was dismissed however, cluded, refitting is the of the only. breach of contract and fraud counts into abolished actions other forms. One at at 628. The court Id. 300 N.W.2d arising injuries to recover cannot sue although the held that elements of seduc- from “defilement bed” present, tion were the essence of the action the mar- or from an interference with was not for but rather for breach riage by simply casting seduction the defendant’s contract, professional negli- In so or standards care. conduct as a breach holding, gence, tort. It court stated: or some intentional is sham law kind of that the case plaintiff’s

Part of claim for medical prevents. malpractice, has been defined as which (citations failure medical of a member A.2d at omit- Id. ted). profession, pro- case all counts employed to treat a The court concluded that essentially were claims for alienation fessionally, to exercise to fulfill conversation, spouse assert a “impaired” did not and criminal affections spouse’s ‘impaired’ complaint.4 claim. “Absent upheld dismissal claims, remaining amount to 739, 675 Caple, 100 Wash.2d In Lund affections alienation of actions [sic]....” Supreme (1984), Washington P.2d 226 Id. claim for loss rejected a husband’s Court determining scope of Colorado’s outrageous result- conduct consortium statute, guided by sec- balm clergyman’s sexual heart the defendant 13-20-201, wife, pro- who 6A plaintiff’s tion misconduct for marital vides: the defendant had consulted counseling.5 The court af- personal Legislative The reme- declaration. summary entry trial court’s firmed the April law provided dies on or before Wyman holding on the

judgment based actions for the enforcement of Wallace, Wash.2d upon alleged alienation of affec- based (1980), reasoning refusal to seduction, that the wife’s tions, conversation, criminal possibility join lawsuit indicated the marry have breach of contract vengeful part motive on the abuses, of a grave subjected to caused been policy and that considerations embarrassment, husband annoyance, hu- extreme affec- abolishing actions for alienation of miliation, damage many pecuniary applied. tion wholly and free of persons innocent dismissed, not on the basis claim was also wrongdoing merely the victims were rationale, of the “heart balm” circumstances, exer- and have been present when the plaintiff, who unscrupulous for their persons cised occurred, establish alleged conduct did not enrichment, furnished unjust and have of out- necessary elements of the tort attempted for the commission or vehicles Lund opinion, how- rageous conduct. many cases of crime and in commission ever, preclude: did perpetration have resulted frauds, counselor, hereby public it is declared as pastoral [A]n otherwise, policy of the state that the best interests which a counselor people of the state will be served treating negligent in a husband either Consequently, by the abolition thereof. malpractice wife. It is conceivable that a *7 interest, necessity for public the a appropriate would be where action hereby part of this 2 is the enactment appropri- fails to conform to an counselor legislative matter deter- declared as a care, pa- injures the ate standard mination. in in loss tient/spouse which turn results spouse. to the

of consortium 13-20-202, we interpreting section Lund, policy at 231. considera- give The court then stated effect must 13-20-201, in essentially enumerated section action was a suit tions broadly as to although not read the statute so of affections should alienation because involving ex- preclude any “im- cause of action underlying tort was on the based affairs, a regardless of relationship, whether paired” spouse’s extramarital tramarital D., so Cal.App.3d affections claim Larry v. ferent from alienation of 4. also Richard H. 198 ("We Cal.Rptr. merely subject do 810 claim was not to dismissal was intended [heart balm] not think the statute arose from a marital relation- because it failed psychia- the standard of care which to lower Hartogs, Roy N.Y. ship); 85 Misc.2d patients, permit their nor to them trists owe (1976) (abolition as a of seduction S.2d 587 liability professional for breach of their avoid recovery preclude action does not cause of responsibilities commit by psychiatrist a who had sexual caused harm G., fraud.”); Cal.App.3d Barbara A. v. John therapy). patient part with a intercourse (abolition Cal.Rptr. of se- attorney bar did not action duction Washington stat- does not have a heart balm was action sexual intercourse client where however, Court, Washington Supreme ute. The battery misrepresentation); Van based on as a viable alienation of affections abolished 1983) Meter, (Iowa Meter v. Van 328 N.W.2d 497 Wallace, Wyman Wash.2d claim (elements policy inten- considerations P.2d 452 dif- tional infliction of were emotional distress a female has At common law seduced included in which not claim for relief seducer, against her no cause of action In our 13-20-202 is enumerated. section party she to the because is a view, only precludes statute the heart balm act, wrongful but also because loss of specifically listed in causes of action those indispensable right of re- service is to a Goldberg, held in a statute. As we covery, except and no one those entitled one of the will not be able mask plaintiff can to the female main- services a law la- common abolished actions behind seduction, right an for the tain action However, com- if the essence of the bel. solely upon being based cause action other plaint is directed to a In many relation of master and servant. abolished, one has been than states, however, right a of action has Accordingly, legally cognizable. claim is given by expressly been statute legal sufficiency of must review the we ** * female seduced. made and Edna to by claims both Robert require that the female statutes claim, admitting determine whether must time of her be unmarried at the states, as allegations a truth of factual seduction, in order to maintain an action law, which relief matter of therefor. may granted. Because Edna has assert- 384-85, (citation 176 P. at 211 omit- Id. more claims that are inclusive than ed ted). relating The statute to the crime of Robert, will address those asserted we effect when seduction that Gen- sufficiency of her first. claims Assembly eral enacted the heart balm stat- ute 1937 was also limited to unmarried III. married, females.6 Because Edna was her did not conclude that crossclaim set Claims Edna’s forth claim based seduction. Grabrian and diocese assert that Edna’s also do not set forth a appeals properly upheld court of claim for alienation affections. As we trial court’s dismissal of Edna’s crossclaims stated, previously an a claim for element of her were for seduction claims alienation affections that the defend- which were abolished section 13-20-202. plaintiffs must ant intend to induce the disagree. We spouse separate. purposes For crossclaims, plaintiff. Edna’s Edna is enticing “the act of a Seduction is man allege did Edna that Grabrian’s acts woman to unlawful intercourse with separate to cause were intended Robert solicitation, persuasion, him means of Nor, view, her. in our allega- do the bribes, promise, or other means without the tions, essence, support interpre- employment Coffee, of force.” Weinlich v. *8 tation. crossclaim a The does include 382, (1919) (citation P. 210 176 claim for of alienation affections. omitted). Weinlich, In the court concluded plaintiff married that because the at Edna’s to set crossclaim fails forth of the time the seduction and no statute claim for criminal “A conversation. recov- permitted by a seduction action ery requires married for criminal conversation woman, sue proof marriage she could not her seducer. Id. that was a there valid 385,176 P. that the 211. The defendant adulterous relations court stated: (1935) provided, 6. Section C.S.A. ch. 48 states: that no be conviction shall had un- shall, testimony Any der this section on the of the fe- promise under man who of mar- seduce, seduced, evidence, riage, unsupported by illicit connection with male female, any character, previous found, chaste unmarried nor be unless indictment shall or shall, promise laid, or who without years two information within after marriage, connec- seduce have illicit and, offense; provided, of the the commission further, female, any previous with unmarried tion subsequent that character, age chaste under of sixteen parties, judgment upon prior to the indict- years, guilty felony, shall of a be information, ment, be a bar shall punished by imprisonment conviction shall be prosecution further offense. years; penitentiary, exceeding ten

283 Clark, court zance and with a civil policy 1 H. spouse.” plaintiff’s The first in amendment Relations cannot interfere.” Domestic Law (2d 1987).7 12.3, States, prohibits ed. at 662 Constitution the United States United allege that Grabrian’s does not respecting Edna “law the establishment Since husband, her involved conduct adulterous exercise religion, prohibiting free Const, for criminal is not an action her crossclaim Marital thereof.” amend. 1. U.S. conversation. presents counseling by a cleric difficult incorporates it often questions because we that Edna’s cross- Accordingly, hold religious counseling and coun- both secular 13-20-202. by section is not barred that seling. agree spiritual coun- While we claims relief Edna set forth five seling, including counseling by a marital (1) his Grabrian breached her crossclaim: implicate first amendment priest, may Edna; (2) negli- Grabrian fiduciary duty to alle- rights, we are not convinced that the duty as a marital performed his gently permit gations Edna’s crossclaim Grabri- counselor; (3) engaged out- Grabrian an to assert a free exercise clause defense. Edna; (4) regard to rageous conduct with knew or should have known of Supreme has Court United States negligence, breach of Grabrian’s distinguished reli the absolute freedom of conduct, and as such duty, and gious limited to act belief from the freedom Grabrian; supervise its breached upon those v. beliefs. Cantwell Connecti jurisdiction over the diocese had 303-04, cut, 60 S.Ct. U.S. Grabrian, negli- the acts and and control 903-04, Abington L.Ed. imputed the dio- gence of Grabrian Schempp, 374 U.S. School District these examine each of claims cese. We L.Ed.2d 844 S.Ct. they were prop- to determine whether turn party chal stated Court by erly the trial court. dismissed governmental infringe lenging action as an rights show ment of his free exercise must A. there effect his is a coercive The threshold issue that must practice religion. When the free exer resolve is whether a member of the first defense, as a cise clause is raised being holds out as clergy, who' himself whether question threshold capable conducting marital trained religious. of the defendant is Wisconsin counseling,8 any liability is immune from Yoder, 205, 215-16, 406 U.S. S.Ct. counseling by caused his vir for harm 1533-34, (“to have the 32 L.Ed.2d first tue of the amendment. [rjeligious protection [cjlauses belief”); religious claims must rooted diocese assert Grabrian Note, Emo see Intentional and Edna’s claims are “violative Robert’s Infliction of Spiritual tional Counselors: Distress First Amendment to the United be “Free Exer performance Outrageous Can Conduct in that the States Constitution cise”?, 84 priest, in- Mich.L.Rev. pastoral duties a Catholic counseling context, spiritual “In the counseling parish- cluding sacramental if the ioners, free is relevant cogni- is a matter of ecclesiastical exercise clause cases, counseling” represented and that "the Defendant criminal conversation while 7. Colorado *9 defining specifically capable, the elements of the he not claim, to Edna that was a Destefano See, agree appear to with this definition. professional could trained be relied 133, Brooks, Bradbury e.g., 257 82 Colo. P. 359 per- serious to assist her with the marital 170, Valiquette, 66 Colo. 180 Sullivan having.” problems purposes was For sonal she Johnson, (1919); Stark v. 95 P. 91 appeal, this must assume the truth (1908). P. 930 allegations, that these and therefore conclude proper. The of Grabrian is characterization and the 8. Grabrian diocese take issue with char- counseling relationship between nature of the acterizing “person who as- Grabrian as a Edna, beyond alleged in what is Grabrian and marriage the role counselor." In her sumed crossclaim, pleadings, be deter- is an issue fact to alleged Edna "the Defendant that mined trial. represented professional himself to be a with necessary people skills to assist need 284 out to the holds himself as one who that the conduct show that can

defendant professional or trained community was as a distress allegedly plaintiffs caused practices’ counselor, fiduciary belief and his ‘part breached fact (citing religious group.” having Id. fiduciary person A is a duty to her. Christoffer Or.App. Scientology, 57 son v. Church undertaking, to act by his duty, created a (1982). The 604 in mat- of another primarily for the benefit that is at alleged misconduct of Grabrian undertaking. A with the ters connected is that Edna’s crossclaim very heart of “with utmost fiduciary duty has a to deal engage in a sexual Edna he induced benefit” of solely for the good faith course, and as a during the relationship (1980). 31:16 beneficiary. CJI-Civ. See result, counseling. Edna of marital beneficiary obligations to the fiduciary’s A result of damages a direct that her were include, loy- among things, duty a other alleged con relationship. If the the sexual (Second) Trusts alty, see Restatement by his sin dictated duct of Grabrian was (1959), exercise reasonable duty a 170 § or was consist cerely religious beliefs held (Second) skill, Restatement care and see religion, we practice of his ent with the (1959), duty to deal 174 and a Trusts § first resolve a difficult would have to beneficiaries, Restate- impartially with see This, however, not is amendment issue. (1959). (Second) ment of Trusts 183 § It has not been asserted the case. practic within the conduct falls Grabrian’s standing person A a church. Grab- es or beliefs of Catholic subject to lia relationship with another brief states that rian's and the diocese’s resulting harm bility to the other for of the vow of “every is well aware Catholic duty imposed by the rela a breach time of celibacy required priest of a at the (Second) tionship. Restatement of Torts points out brief his ordination.” difficulty in find We have no priest has that “sexual involvement Grabrian, marriage counselor as a scope of per se outside the been held to be Edna, fiduciary duty owed a to Robert recognizes The brief employment.” his duty His to Edna was “created to Edna. activity by priest and admits that sexual undertaking” to counsel her. Grab- his fundamentally antithetical to Catholic such, duty, given the nature of upon which rian had doctrine. As the conduct is, by engage defini premised counseling relationship, crossclaim is con Edna’s tion, sincerely expression of a held designed improve the Destefanos’ duct religious belief. fiduciary, he relationship. As a marital engage in conduct obligated not to cannot, clergy in all cir- Members of the relation might harm the Destefanos’ cumstances, use the shield of the first true, it is clear ship. If the are protection and as a basis for amendment his to us that Grabrian breached immunity the al- from civil suit.9 When clearly intercourse leged wrongdoing obligation of a cleric falls when he had sexual Biris, of his reli- outside the beliefs and doctrine Ill. Edna. Horak v. protec- avail himself of the gion, he cannot Ill.Dec. 474 N.E.2d 13 App.3d afforded the first amendment. tion (1985); see also Watts v. Cumberland Inc., N.C.App. County Hosp. Sys.,

B. 330 S.E.2d rev’d on 321, 345 S.E.2d 201 grounds, 317 N.C. alleg first claim for relief Edna’s Grabrian, position priest as a es that his religious Ill.Dec. 366 N.E.2d 480 institutions 3d It is well-established Co., See, (same); liability. e.g., So.2d 511 Bass v. Aetna Ins. immune from tort Church, (La.1979) (church negligence responsible for Baptist So.2d 265 Heath v. First *10 (church may slip pastor an unreasonable risk of in (Fla.App.) who created be held liable way by clearing premises negligence jury aisles to make for the not and fall on the claim), under denied, (Fla.1977); spirit,” "running a common form of reli in the cert. 348 So.2d 946 church). gious expression IlI.App. at that Bishop Chicago, Fintak v. Catholic 51 of

285 acknowledged of a has the existence such C. malprac- clergy tort.11 the claim Since alleg for relief second claim Edna’s precedent supported by is and rais- tice “negligently performed that Grabrian es issues, we first amendment es serious that a marital counselor” and as a his claim for re- concluded that Edna’s second represents him clergy who member of the counselor, properly dismissed. We do not has lief was competent a marital as self knowledge, malprac- of employ degree recognize “clergy the duty to the claim of a possessed skill, ordinarily judgment tice.” profession in commu that the members of generally recognized that Courts have negligence professional of nity. claim This engages professional when a counselor See Artist v. malpractice. is a claim for client, patient, a sexual relations with or 365, Butterweck, P.2d 559 162 Colo. 426 eounselee, may held he be liable dam 352, Norberg, Dixon v. (1967); Roy Hartogs, v. See ages. Misc.2d 85 (1945). Malpractice consists P.2d 131 157 v. Kam Cotton 381 587 N.Y.S.2d misconduct, professional unreason of bly, Mich.App. 300 N.W.2d 627 101 fidelity professional or lack of skill able (1980). Assembly The General has enacted duties, illegal practice, or evil penalties against legislation imposes Black’s Law Dic conduct. or immoral psychologists engaged who are sexual (5th 1979). tionary 864 ed. Since Grabrian patients intimacies their clients. malpractice priest, the claim

is a Catholic 12-43-lll(l)(l), 5 Section realm of Edna falls within the date, provides: “clergy malpractice.”10 To no court agree unique counterpart, and the diocese with this con- tinct and from his secular

10. Grabrian they entirely "If approaching therapy clusion. In their brief assert: this an different peti- identify Court chooses claims perspective.”). anything of tioners fections, other than alienation af- must, case, date, adultery, on the seduction and it that The has involved self-description pleadings, recog- of in the malpractice basis viability clergy Natty is of a claim ‘clergy malpractice’ nize them as claims of Community Valley, Church 157 Grace of against priest Catholic and the Catholic 302, (1984). a Cal.Rptr. Cal.App.3d In Church.” young Natty, parents of a man who commit- argued has At least one commentator wrongful brought death ted suicide a "spiritual cause of action should be labeled pastors counseling who had been counseling malpractice.” dispute, in such “Clergymen him. their entitled Mal- action, counseling "focuses on rendered a parents alleged pastor practice,” the that the meeting clergy spiritual, member of care failed to exercise “the standard emotional, religious needs the counse- clergyman training his sect com- Ericsson, Clergymen Malpractice: lee.” Ramifi- munity” would exercise because he did not tell Theory, cations a New 16 Val.U.L.Rev. counseling young man to seek the terminology We to use decline this psychiatrist for his mental and emotion- trained counseling clergy by members is granted summary problems. al The trial court frequently directed matters that are essential- judgment in favor of defendant but ly “Family counseling nature. secular in appeals court of reversed. counseling psychological are two notable areas however, appeals, did not ad- court of overlap in which there substantial between malpractice viability clergy dress the claim, religious aspects spiritual the secular and the claim of intentional but focused on Note, Clergy Malprac- counselor’s activities.” Id. 204 Cal. infliction of emotional distress. Counseling Taking Spiritual Be- tice: Conflicts Supreme Rptr. at 308-09. The California Court Analysis, Rutgers yond L.J. Intentional Tort appeal to hear the and ordered that the refused Comment, But see Made Out of August case decertified on eliminat- Analysis A Whole Cloth? Constitutional precedential effect. its Clergy Concept, Malpractice 19 Cal.W.L.Rev. malpractice clergy also arose The issue (1983) (pastoral counseling is a reli- Barnett, (Mo.App. 723 S.W.2d 544 Hester v. secular, activity gious, in which im- ”[i]t 1987), that court did not address viabili- possible separate ‘cure of the minds’ from Richards, ty Handley a tort. See also Comment, ’’); Clergy 'cure the souls’ Mal- J., (Ala.1987) (Maddox, concur- 518 So.2d ring) Making Clergy practice: a Lower Accountable to extensively Power, (quoting con- from Hester and Pepperdine L.Rev. (“While cluding plaintiff a claim for degree similarity failed state overlap some conduct.”). exist, “outrageous may religious clergy malpractice or remains dis- counselor *11 liability provisions of the statute from the psycholo- board of state The [Colorado liability profes- power deny, creating for mental health to gist has examiners] revoke, any sionals, suspend, refuse to renew we conclude that Edna’s second or license, probation a licen- dismissed. place properly or claim for relief to (Z) see, person upon proof that such ... relationships with clients maintained D.

Has professional impair his likely to Edna also as The crossclaim of risk client or increase the judgment outrageous engaged in serts that Grabrian treating employees, exploitation, such as outrageous for conduct The test conduct. colleagues, or rela- supervisees, close is: Colorado tives, having intimacies with or sexual Causing Severe Outrageous Conduct clients.... Distress Emotional However, expressly has legislature outrageous who extreme and One religious minis- evinced an intent to exclude intentionally recklessly causes conduct or ters, statutory from the priests, and rabbis emotional to another is severe distress liability psy- imposes scheme which liability to emotional dis- subject such 12-43- chologists malpractice. Section another, bodily if harm to tress to 114(10), states that: it, bodily results from for such Nothing in shall restrict a this article harm. minister, priest, duly or rabbi ordained Co., Adolph 759 P.2d Churchey v. Coors respon- carrying his ministerial out 1336, (Colo.1988) (quoting Rugg v. functioning in while his ministe- sibilities 753, McCarty, 173 Colo. recognized capacity reli- rial within (Second) (quoting Restatement organization serving spiri- gious Torts, (1965))). 46 comment d Out- § constituency, provided tual needs of its rageous must be “so public out to he does not hold himself character, degree, as and so extreme in to description incorporating title or go possible decency, beyond all bounds “psychologist,” “psychologi- the words atrocious, regarded as and to and utter- be cal,” “psychology,” imply- or other term community.” ly in a civilized intolerable training, experience, expertise omitted). (citations Viewing Id. the cross- psychology. Edna, light most favorable legislative intent of the General As- must, allega- as we conclude that the pronounced in sembly is even more complaint tions in the are sufficient relating penalties 1988 enactment a motion to We withstand dismiss. note professionals against mental health court, it is that on remand for the trial marriage family therapists engage instance, whether first determine their in sexual intimacies with clients or “outrageous.” conduct at issue Id. patients. The statute states that: E. practice “[a]ny person engaged in the religious ministry required not be shall Edna, in her and fifth fourth article,” comply provisions of with the this relief, alleges claims for long him- person so as such does hold Grabrian, to supervise breached its public by out to self titles the actions of should Grabrian “psychologist,” “licensed and imputed employer may to the diocese. An family therapist,” professional “licensed responsible be held tortious conduct counselor,” person li- unless the has been if employee only an the tort is committed pursuant regulatory the state censed scope employ within the course Chapter scheme. section Country ment. McDonald Lakewood 12-43-215(1), 1988 Colo.Sess.Laws Club, 170 Colo. 461 P.2d 437 543-44. Register see National Co. v. Cash Assembly Lightner,

Since General has shown (1964) (The principal ordinarily intent to religious exclude counselors

287 Re- liable therefor. cause harm is agent of the independent [See acts the liable for (Second) of 317 Torts statement scope § of the name outside in his own done (1965)]. acting is employee An employment.). his if is employment he scope of his the within has been as-

engaged in the work act for employs One another to is employer he him his signed to him is liable under rule stated not incidental to the necessarily is doing merely what em- this because the one Section to him or assigned vicious, which has been incompetent, work or care- ployed is customary because, the business within liability which is results is less. If it circumstances, employee engaged. Russell v. employer is which the under Colo.App.360, Co., Mortgage prudent 39 Am. has not taken the care which a First violation of priest’s selecting person A 565 P.2d 972 man take would contrary to in- celibacy precau- in hand. is for the What his vow business depend upon Catholic taken and doctrines tions must be structions priest normally has sexual inter- can assume that When a situation. One church. part perform simple not to parishioner it is another who offers with a course If, however, the customary competent. within the work is duties nor priest’s subject persons to likely work is third Such conduct is of the church. business harm, is a great serious there risk contrary principles to the of Catholicism investigation. special duty assigned tasks is not incidental to the priest by Under facts of the diocese. under rule stated Liability results imputing Section, is for this case there no basis the rela- in this because of for the liability to the diocese the em- parties, vicarious tion of the because antecedently ployer conduct Grabrian. had reason to believe exist that an risk of harm would undue do though Even Grabrian’s acts employment. The em- because of holding the create a basis for diocese liability only for such ployer subject liable, may vicariously be di therefore, If, the risk. harm is within negligently supervising rectly liable quality of the risk exists because (Second) Restatement Grabrian. liability only there is employee, (1958) 213 states: Agency § by the extent harm is caused that the activity through person conducting A em- quality employee which the subject agents or other servants suppose would be ployer had reason resulting from liability for harm his con- likely harm. to cause negligent if he is or reckless: duct Court, v. 199 District Martinelli 1083, 1087 612 Colo. (c) supervision of the activi- may directly be liable (police department ty.... selection, negligence supervision or d states: Comment officers); police retention of Rosane principal may negligent be- be 149 P.2d Senger, 112 Colo. he has to know that the may directly cause reason be liable (hospital 374 doctors); agent, or other his negligent servant acts of Western (Colo. likely Brochner, others qualities, is to harm view 682 P.2d 1213 Ins. Co. v. may directly entrust- liable App.1983) (hospital of the work instrumentalities doctors), dangerous quality surgery him. If of staff ed to for needless harm, 1293 principal may grounds, agent causes rev’d (Second) (Colo.1986);12 one initiat- Restatement under the rule that be liable (1965)(“[T]he mas- c tendency to Torts 317 comment having an undue (1979); Woods, jurisdictions recognized Co. v. N.M. 594 P.2d 745 the tort 12. Other Inc., Bureau, negligent supervision. Dempsey Dis- Pa. See International v. Walso Co., Corp. v. F.2d Mfg. trib. American Dist. Tel. Textron Welsh Div. A.2d (D.C.Cir.1977); Army Murphy v. (R.I.1984). Pinkerton's, A.2d 436 Distaff Found., Inc., (D.C.App.1983); & TF 458 A.2d 61 spouse to to induce the must intend liability ant ... may subject himself ter *13 (2) induce who, the defendant must separate; servants employment retaining in his leave or to spouse plaintiff mis- in the habit of knowledge, are to his plaintiff; and separated from remain danger- in a manner conducting themselves must result in loss an action others.”). Accordingly, we hold that ous to consortium, including loss of affection and have known knows or should person who companionship, and aid. Criminal society, subject would employee’s conduct that an essentially adultery and the conversation is risk of unreasonable parties to an third brought by “innocent” may be parties directly liable to third may be harm Keeton, Dobbs, D. R. Kee- W. spouse. See by his con- proximately caused for harm Owen, on D. Prosser and Keeton ton & duct.13 (5th ed. at 917 the Law Torts § states: for relief Edna’s fourth claim 1984). counsel- Robert that while Diocese of Colorado Defendant Edna, he engaged in conduct Grabrian known that knew or should have Springs have known would lead to “knew or should engaging in was Defendant Grabrian problems marital between additional negli- outrageous, conduct which was plaintiff and Edna and would cause fiduciary duty, gent, of his and a breach marriage.” of their probable dissolution Diocese owed a and Defendant alleged that Grabrian and Robert further Defendant Grabrian supervision of said relationship “entered into an intimate Edna duty, said public to the and breached contributed to the ultimate dissolu- damages causing injuries and set marriage plaintiff tion of the between forth above. complaint Edna.” The asserts that the true, Edna Accepting these plaintiff conduct of affected Grabrian claim for relief has stated viable following marriage his manner: negligent supervision. the diocese for minor children of that former There are marriage, upon learning court erred in of the rela- We conclude that the trial claim, proper- Defendant dismissing tionship Edna’s fourth between the Grabrian Edna, ability to main- for relief. the Plaintiff’s ly dismissed her fifth claim working parental relationship tain a impossible, any Edna has been rendered IY. salvaging marriage chance of Robert’s Claims impossible, and the Plaintiff rendered excruciating suffered and endured has appeals The court of determined pain suffering. mental claims, however denom that Robert’s inated, affec “are based on alienation of of the first claims in the The substance two conversation, and criminal both of tions complaint relates to the adulterous conduct by the ‘heart balm stat which are barred that resulted in the destruction of Grabrian ” ute.’ To determine the nature of injuries allegedly and the action, examination of the substance of arising Gasper from that conduct. complaint required. 367, 373, Erickson Inc., Md.App. Lighthouse, Co., 208, 206, view, (1987). Publix Cab In our these A.2d see Great Western allegations plainly set forth claims for Sugar Co. v. Jackson Lake Reservoir & alienation of affections and criminal con- (Colo. Co., Irrigation recognize any 681 P.2d versation. We choose not to 1984). Musim, apart In Goldberg v. 162 Colo. of common law claims Robert’s they we stat claim for relief the third plainly action for alienation of affec claims for alienation of affections ed that an Accordingly, requires following: defend- and criminal conversation. tions If, remand, to believe that an undue risk of harm would Edna asserts that the propensity employment.” known of should have Grabrian’s exist because of the Restatement acts, negligent (Second) commit or intentional then she Agency 213 comment d “antecedently reason must show the diocese Justice, specially QUINN, dis- Chief properly trial court that the we hold concurring: claims in second first and Robert’s missed 13-20-202, 6A section complaint under Mullarkey’s special concur- join I Justice in the result specially concur rence separate- I majority. write reached claim is one third Robert’s recognizing the my view that ly to state standing in fiduciary duty. One breach malpractice” “clergy would so-called tort result for harm of trust is liable position *14 only legislative decision contravene by duty imposed of the ing from a breach compli- exempt religious ministers from to (Second) of position. Restatement statutory provisions of the ance with the (1979). alleges The third claim Torts § dealing psychologists and oth- scheme fiduciary duty breached Grabri- that the practitioners, health er mental a result of diocese arose as an and the (1985); 12-43-114(10), 5 C.R.S. see also § into relationship entered counseling 12-43-215(1), 1988 Colo. ch. sec. § As we Edna with Grabrian. and Robert 535, 543-44, also would der- Sess.Laws but reviewing first claim in Edna’s concluded constitutionally protected inter- ogate the relief, that the nature we believe ministers, priests, rabbis to con- est gives relationship here counseling marriage counseling as duct bona fide part to duty on rise to a clear Grabrian’s Free Exercise guaranteed Clause Const, calculat activity in or conduct Amendment. U.S. amend. engage the First marriage. I. improve the Destefanos’ ed to from conduct

This to refrain majority Edna and agree I with the to the it a risk of harm which carries with cognizable Destefano have stated Robert Robert and couple extends to both marital duty, fiduciary claims for breach Biris, Ill.App.3d Edna. Horak out- also has stated a claim for that Edna 474 N.E.2d 13 fiduciary 85 Ill.Dec. A relation “ex- rageous conduct. of them difficulty finding persons in that Grab- two when one have no ists between We give duty to act for or to advice is under a falls within intimacies with Edna rian’s upon matters the benefit of another it a risk of which carries with “conduct scope of the relation.” Restate- within the such, Robert. As Rob harm” to Edna and (Second) 874 comment a Torts ment § claim for relief is sufficient ert’s third Liability for breach 12(b) motion to dis the C.R.C.P. withstand upon agree- dependent solely duty is not miss. fiduciary and contract between the ment or summary Accordingly, we reverse the from the rela- beneficiary but results appeals, the court of judgment granted by reasonably can Id. No one tion itself. resulting dismissal affirm the relation between a dispute the fact that the claims for relief second and fifth Edna’s the same priest person and a Catholic claims for first and second and Robert’s counseling receiving marriage faith who the court of return the case to relief. We fiduciary relation priest is a from the to the directions to remand appeals with trust and confidence. founded on utmost proceedings for further consist- trial court When, priest abuses alleged, here opinion. with this ent by engaging sexual position of trust his counselee, the torts of relations with fiduciary duty and breach C.J., concurs, and QUINN, specially provid- adequate the task of MULLARKEY, J., special joins remedy effective with an ing the counselee concurrence. misconduct. type egregious this concurs, MULLARKEY, J., specially legislative obvious agree I that the also C.J., regulat- QUINN, statutory scheme and LOHR intent behind health KIRSHBAUM, JJ., other mental special psychologists join exempt duly ordained practitioners is concurrence. counseling, ministers, independently of secular stan priests, from the li- and rabbis they applicable professionals, to licensed censing regulatory scheme when dards responsibilities in clear. Such a formidable their ministerial would all too pursue constit- serving religious marriage needs of their fide spiritual obstacle bona 12-43-114(10), counseling fly 5 C.R.S. face directly uencies. See would § ch. sec. see Free Exercise of the First Clause 12-43-215(1), 1988 Colo.Sess.Laws Amendment. proceeds exemption from an 543-44. This say I MUL- am authorized that Justice that married recognition fact obvious joins special LARKEY me this concur- experiencing persons marital difficulties rence. marriage coun- to obtain frequently choose minister, seling priest, rabbi their Justice, MULLARKEY, specially they precisely desire resolve concurring: with their difficulties accordance their *15 agree opinion I with Justice Erickson’s subject A rule religious beliefs. that would permitted that both Destefanos should be religious to of minister the standard the try their for to claims breach of applicable psychologists practice to licensed permitted and that Edna should be to marriage community in counselors the try her claim for conduct. I very which endanger would the distinctions separately express my to write views on religious counseling desirable and make statute, the construction of heart balm Assembly the General intended to -208, now sections to codified at 13-20-201 against regulation. protect state (1987). 6A C.R.S. Moreover, the Free Exercise Clause of heart We construed the statute in balm protects only First not Amendment Marriage relatively two recent cases: In re against governmental prohibition of 36, Heinzman, 198 Colo. of religious practices fide but also bona Musim, Goldberg 61 governmental secularization of cases, 461, 427 698 In both we See, practices. e.g., v. Unem Hobbie emphasized purposes of the heart balm Commission, 480 ployment Appeals U.S. to temptation rely statute avoided 136, 1046, (1987); 107 S.Ct. 94 L.Ed.2d 190 analysis elements on technical Board, 707, Thomas v. Review 450 U.S. princi the abolished causes action. 1425, (1981); 101 S.Ct. 67 L.Ed.2d 624 Wis statute, purpose pal of the heart balm as Yoder, 205, 406 consin v. U.S. 92 S.Ct. 13-20-201, expressed in is to section elimi 32 15 L.Ed.2d Sherbert v. brought by nate meritless lawsuits “un Verner, 374 83 U.S. S.Ct. 10 scrupulous persons unjust for their enrich (1963). Legislative judicial 965 L.Ed.2d marriage. ment” after a failed romance or recognition “clergy the so-called tort of Note, See Heartbalm Statutes and malpractice” fundamentally would Actions, 83 Deceit Mich.L.Rev. First, it re flawed two counts. would equally An important n. 27 reason secularizing various of sectar sult forms supporting heart balm is “the statute religious counseling ian that are entitled to increasing spouse recognition that each is Second, protection. constitutional it would being, an autonomous human that neither undoubtedly deterring minis result some other, property is the of the’ and that a ters, priests, engaging and rabbis easily home so is not worth main broken marriage counseling in order to avoid Keeton, Dobbs, Keeton, taining.” D. R. W. conforming not potential liability for to Owen, and D. Prosser and Keeton on the applicable psycholo standards to licensed (5th 1984). at ed. Law Torts or, marriage gists therapists, or licensed at Heinzman, In we held least, heart very adjust incline them their not balm statute does bar a suit for return counseling applicable method to standards gift engage- engagement of an after the secular licensed The result counselors. right In the of a religious effect on the ment broken. context broken counselor’s emphasized engage marriage engagement, fide that the stat- religious in bona we (criminal, listed four torts conver- ture damages suf- only “actions ute barred marry affections, promise sation, seduction, breach fered from the alienation consequences and other direct marry) promise and breach of make Colo, breach, at humiliation.” such as of the plain sweeping nature law it 40, 596 P.2d at 64. passed those four constituted all because recognized held that the heart balm actions. Goldberg, we heart balm brought by a wom- a lawsuit statute barred Note, Miller: The Death Cannon v. Brief that her had been an who claimed Alienation and Criminal of Affections she destroyed by a woman whom named Carolina, North 63 N.C. Conversation in plain- noted that the the defendant. We (1985). I would be L.Rev. more not a Goldberg tiffs claim of an persuaded appropriateness ele- affections within common alienation of ment-by-element analysis if the Colorado in Colorado law definition as used contemporaries legislature, of its like some right of action alienation “a wife had no states, selected certain her of the affections of husband.” Note, heart balm actions to abolish. See Colo, P.2d at 703. Neverthe- Actions, Heartbalm and Deceit Statutes less, held at 1770-71. Since that is Mich.L.Rev. complaint “squarely within the abol- fell case, adopt the form I would affections], for ished action [alienation analysis used Justice Erickson. of a all that arises out relation- *16 i.e., separate ship, inducement Here, Erickson concludes that Justice services, resulting society, loss loss by Edna Destefano’s claim is not barred at pain, suffering and humiliation.” Id. heart balm she statute because was 467, 427 P.2d at 701. could married a married woman is approach apply That we should to bring At a claim for seduction. 282-283. Attempting the case now before us. conclusion, support To he must reach that establish the elements abolished case, Coffee, back to a 1918 Weinlich causes of can lead to absurd language Colo. P. 210 application results have no to con- which case, embodying property of that outmoded society. ap- Justice temporary Erickson’s concepts in the and master/servant context proach require snapshot a would us take marriage, today. no has relevance in time 1937 when the as of heart balm to rest in should be allowed ob- Weinlich statute and define ele- was enacted given new scurity, not cur- resurrected ments of the torts abolished that act. rency opinion. logical in a modern analytical impossible This is an task be- approach corollary of Justice Erickson’s is cause, states, good as Prosser “there no if Edna that Destefano consulted among distinguishing reason” the four counseling premarital and the priest usually lumped torts to- and the torts occurred, same course events had her gether general name “under the of ‘alien- against priest be barred would affections,’ any attempt ation without woman she an unmarried who because distinguish possible elements of brought a seduction claim at could have Prosser, Handbook tort.” W. the Law (4th 1971). common law. a distinction could not Torts at 876-77 ed. Such § prop- upheld under the married women’s Justice Erickson at footnote act, 14-2-202, erty 6B C.R.S. section difficulty acknowledges the caused at- equal protection guarantees of tempting analyze the elements of each constitutions, state federal tort, compelled that we are to do states state equal rights of our con- amendment so the heart balm statute lists four opinion, separate my legisla- stitution.1 torts. ser, basis, Torts 124 at § Handbook the Law

1. On similar states have retained Clark, the permit our heart law claims abolished balm H. Domestic Rela- See abo 1 The Law of bring 12.2, (alien- women to both men and at 653 tions in United States apply claims. Identical rules to both. W. Pros- purposes of the heart If we look to the statute, that the statute it is clear

balm on bar claims based

was not intended to

breach against priest counseled marriage. When such a parties

both I relationship present, would hold

special apply. does the heart statute balm Law Prosser and Keeton (suggesting heart at 930 Torts § not bar relief “when statute should

balm family relations is

the interference with indepen of some

accomplished by means tort”). See also O’Neil Schuck

dent

ardt, 112 Idaho

(court cause of action judicially abolished alienation affections but held bring privacy invasion of

plaintiff could of action church officials for

causes

allegedly inducing plaintiff’s wife and chil cult). join religious

dren to

I state that Jus- am authorized to Chief QUINN, LOHR and Justice

tice Justice special in this join

KIRSHBAUM concur-

rence.

Marvin SHERMAN Marie Petitioners,

Sherman,

The CITY OF COLORADO SPRINGS

PLANNING COMMISSION and City

City Council Colorado

Springs, Respondents.

No. 86SC306. Colorado,

Supreme Court

En Banc. 17, 1988.

Oct.

Rehearing Nov. Denied 12.3, conversation) (2d affections), (criminal 1987). ed. ation of