In Re Murtha
GOLDMANN, P.J.A.D.
Sister Margaret Murtha appeals from a Law Division order holding her in contempt for violation of an order directing that she testify before a special Hudson County grand jury, and confining her to the county jail until she had purged herself by answering the questions posed. The trial judge having denied bail, we released Sister Margaret in the custody of her attorneys and scheduled the appeal for early argument.
On March 4, 1971 Sister Margaret appeared pursuant to subpoena before the special grand jury investigating an alleged homicide that had taken place about midnight of February 26/27, 1970. After giving her name, and her address as St. Boniface Convent, Jersey City, she affirmatively answered a question as to whether she was at the convent оn February 27, 1970 when Sister Francesca awakened her at 1 A.M. to speak to a Louis Cevetello. Having stated that she had a conversation with him at that time, she was shown a statement signed but not sworn to by her at police headquarters at 3:05 of the morning in question. She admitted she had read the statement before signing it, but
Sister Margaret was then asked a series of questions which she refused to answer on the basis of the same privilege: whether, after meeting with Cevetello, she had occasion to leave the convent with him and Sister Francesca; whether they drove to the area of Cole Street and 7th and 8th Streets, Jersey City; whether she had occasion to see а man lying there with his stomach moving up and down; whether the three of them then drove to the Second Precinct police station; whether, when Cevetello met her at the convent, he told her he wanted to go to the police station and tell what had happened; whether he at that time told her he had been drinking with a man known as “Happy” and had subsequently hit him, and that he appeared to be badly hurt аnd was lying in Cole Street between 7th and 8th Streets; whether she had gone to the Second Precinct at 1:30 A.M. and told Desk Lieutenant Byrne that Cevetello had been in a fight with a man and had come to her at the convent, that the man was still lying in the street and she did not know if he was alive, but that his stomach was moving up and down.
Upon her refusal to answer before the grand jury, Sister Margaret was brought before Assignment Judge Larner for a hеaring on her claim of privilege. The grand jury proceedings, outlined above, were read into the record. Sister Margaret was permitted to testify in order to establish the facts upon which she based her claim of the priest-penitent privilege. She said she was a member of the Dominican Sisters of Caldwell, primarily a teaching order. Her four-year training period to become a nun included instruction in the religious life as well as in secular courses to prepare her for teaching. Cevetello, a Catholic youth of 12 or 13 when she first met him in 1966, attended her social studies classes. From the beginning he would see her at the convent and at school to discuss family, social and moral problems, school problems and, on occasion, religious problems. Over
On cross-examination Sister Margaret, in answer to the trial judge‘s inquiry, admitted that she did not conduct any type of religious services in the school, nor did she “carry on any of the priest[ly] religious functions, such as confession or anything else which is normally done by a priest.” Nonetheless, she insisted that her role as teacher was secondary to her religious life: she viewed herself as “primarily a religious person.”
After considering the testimony, the arguments of counsel and the briefs submitted, Judge Larner found that Sister Margaret could not assert the priest-penitent privilege under N.J.S.A. 2A:84A-23 (Evidence Rule 29). Privileges, he said, must be strictly construed, citing State v. Briley, 53 N.J. 498 (1969). He found that Sister Margaret was basically a teacher; her contacts wtih Cevetello involved not only the classroom teaching, but “the extension of the true functions of a good teacher, namely, acting by way of an advisor to the pupil, not only in connection with the formal subjects being taught but in connection with all problems that the boy may have had * * *.” The fact that Sister Margaret had a religious training and background, and that she taught in a religious school, did not in the judge‘s opinion change her status with respect to her relatiоnship with young Cevetello. Further, she did not perform the normal functions of a priest, did not conduct religious services, and had no powers or functions insofar as the Catholic Church was concerned. Judge Larner also found that what Cevetello told Sister Margaret on the night in question was not communicated to her in her professional character.
An order directing Sister Margaret to answer the questions put to her before the special grand jury was signed on March 9, 1971. This court, as well as the Supreme Court, denied her applications for leave to appeal. It appears that her attorney and the prosecution then agreed it would be
It will be seen that the only asserted ground for Sister Margaret‘s refusal to answer the questions asked of her before the special grand jury was her claim to the priest-penitent privilege. That claim was re-asserted in her applicatiоns for leave to appeal as well as in her application to be released from custody after entry of the contempt order. At oral argument of the appeal, however, a new contention was advanced. What Cevetello had told her, it is now said, was a confidential communication, and the State was prohibited from compelling its disclosure — this under the free exerсise of religion provision of the First Amendment to the United States Constitution. It was conceded at the argument that this position was one of individual conscience, and was not a matter of church discipline or doctrine.
The priest-penitent privilege was not recognized as a rule at common law, either in England (certainly after the Restoration, 1660) or in the United States. 8 Wigmore on Evidence (3d ed. 1961), § 2394 at 869. New Jersey did
A clergyman, or other minister of any religion shall not be allowed or compelled to disclose in any court, or to any public officer, a confession made to him in his professional character, or as a spiritual advisor, or as a spiritual advisor in the course of discipline enjoined by the rules or practice of the religious body to which he belongs or of the religion which he professes.
The 1947 act was repealed by L. 1960, c. 52, § 49 and was supplanted by
Subject to Rule 37, a clergyman, minister or other person or practitioner authorized to perform similar functions, of any religion shall not be allowed or compelled to disclose a confession or other confidential communication made to him in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.
Evidence Rule 37 (
Evidence Rule 29 obviously broadened the privilege to include not only a clergyman or minister, but any “other person or practitioner authorized to perform similar functions” of any religion. Moreover, the rule now prohibits not only the disclosure of a confession, but also any “confidential communication” made to any such designated person in his professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which he belongs or of the religion which he professes.
State v. Briley, above, which dealt with the husband-wife privilege in a criminal action (Evidence Rule 23(2),
* * * Since rigid adherence to the letter of the privileges promotes the suppression of truth, they should be construed and applied in sensible accommodation to the aim of a just result. In view of the obvious policy of the law to enlarge the domain of competency of witnesses and to adapt rules of evidence to the successful development of the truth, competency should be regarded as the rule and incompetency as the exception. * * * It follows therefore that when a greater public interest is served by recognizing the competency of one spouse to testify against the other and no violence is done to the privilеge as expressed in a statutory or judicial rule of evidence, the testimony should be received. [53 N.J. at 506; citations omitted]
Applying what was said in Briley to Sister Margaret‘s claim of the priest-penitent privilege, attention must at once be focused on the clause, “a clergyman, minister or other person or practitioner authorized to perform similar functions.” Sister Margaret did not, and obviously could not, show that she was a person or prаctitioner authorized to perform functions similar to those performed by a clergyman or minister — more specifically, by a priest. She was a religious (religieuse), a dedicated member of a teaching order of nuns, but she admittedly did not conduct any type of religious services involving pupils in the school, nor did she carry on any of the religious functions of a priest, such as hearing confessions or giving absolution. Asked tо explain, if she could, what religious aspect she attached to her relationship with individuals such as Cevetello, as opposed to a social or an educational aspect, her answer was: “Very
Counsel has been unable to find anything in Catholic doctrine or practice that would give Sister Margaret the right to claim the priest-penitent privilege. In our own research we have found no authority, textual or decisional, to support the contention now advanced that a nun qualifies for the privilege. In this connection, we were informed by counsel that Sister Margaret‘s superiors urged her to testify; neither priest nor mother superior perceived any barrier to her doing so. We note from the record that Sister Francesca, who at one point also claimed the privilegе, eventually agreed to testify to the fact of there having been a conversation between Cevetello and Sister Margaret and as to what she (Sister Francesca) saw and did thereafter.
Although we dispose of Sister Margaret‘s claim of privilege on the basis of our reading of Evidence Rule 29, one may well question her right to the claim in light of Evidence Rule 37, relating to waiver of privilege by previous disclosure. She did not hesitate to go directly to the police station after viewing the body Cevetello pointed out to her, and there sign a statement as to what he had told her at the convent and what she saw and did thereafter. Her posture then was not that of a person standing in the relation of a priest hearing Cevetello‘s confession or confidential communication.
We turn to the contentiоn that the State is prohibited from compelling the disclosure of Cevetello‘s alleged “confidential communication” by reason of the First Amendment to the United States Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *,” made applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1948); Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962).
Counsel quotes at length from the constitution оf Sister Margaret‘s order as laying down the guidelines for a Dominican sister‘s life. A thoughtful reading of the text fails to show that the path Sister Margaret would pursue in this case is dictated by the precepts of her teaching order, whose members “accept as our special commitment the pursuit and dissemination of truth.” The Caldwell Dominicans, declares the order‘s constitution, “accept as our speсific vocation the apostolate of education, by which we understand the communication of truth, which has ever been the Dominican ideal. Our concept of the educational apostolate embraces the communication of truth at all levels, from pre-school training through adult formation: It includes likewise both the formal and informal channels of education.” In light of the preсepts embraced by Sister Margaret and her Dominican sisters, we find without substance her assertion that it was in performance of her obligations that she met with Cevetello and that what she heard, saw and did represented a constitutionally guaranteed right to the free exercise of her religion.
The most recent case is Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970), in which the Supreme Court accepted the reasoning of the Second Circuit in United States v. Kauten, 133 F.2d 703 (1943), that the proper focus of the test for military exemption is on the “conscientious” quality of the belief, and not its religious or nonreligious quality, and therefore the class of exempted persons must be wide enоugh to include those nonreligious believers whose opposition is based upon the “compelling voice of conscience.” Cf. In re Weitzman, 426 F.2d 439 (8 Cir.1970) (exemption, under section 337(a) of the Immigration and Nationality Act of 1952,
The relationship of conscience to religion is a subject that lends itself to almost limitless treatment, whether one‘s approach be theological, philosophical or, as here, constitutional. This vexing question has received increasing attention
If Sister Margaret‘s present conviction that she should not answer to the grand jury is a sincere one, one cannot but help wonder where that conviction, where that compelling voice of conscience, was when she hastened to the police station immediately after she had gone with Sister Francesca and Cevetello to view what he had to show her on Cole Street. Then, after telling the police exactly what had been said and what had happened, she signed a statement in which she declared that it was “true and voluntary.”
This case calls for a balancing of interests — that of the State in enforcing the power of the grand jury to inquire into the commission of а crime, and that of Sister Margaret who claims that she responds to a call of conscience. In the particular circumstances of this case the latter must give way to the former. Cf. People v. Woodruff, 50 Misc.2d 430, 270 N.Y.S. 2d 838 (Sup. Ct. 1966), aff‘d 26 A.D.2d 236, 272 N.Y.S.2d 786 (App. Div. 1966), appl. dism. on cond. 20 N.Y.2d 879, 285 N.Y.S.2d 622, 232 N.E.2d 652 (Ct. App. 1967), aff‘d 21 N.Y. 2d 848, 288 N.Y.S.2d 1004, 236 N.E.2d 159 (Ct. App. 1968); In re Williams, 269 N.C. 68, 152 S.E.2d 317 (Sup. Ct. 1967), cert. den. 388 U.S. 918, 87 S.Ct. 2137, 18 L.Ed.2d 1362 (1967).
Counsel has attempted to analogize this case to Caldwell v. United States, 434 F.2d 1081 (9 Cir.1970), cert. grtd., 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971),
The order under review is affirmed.