L.L.N. v. Clauder

L.L.N., Plaintiff-Appellant-Cross Respondent,

v. Clauder, Defendant, J. Gibbs Defendant- Madison, Inc., Diocese of Roman Catholic Respondent-Cross Appellant-Petitioner, Defendant,

ABC Insurance Company, a Wisconsin Corporation, Research Products Party. Corporation, Subrogated Supreme Court 4, 1997. argument May No. 95 - 2084. Oral March —Decided 23, 1997. 434.) (Also reported in 563 N.W.2d defendant-respondent-cross appellant- For the petitioner by Heaney, there were briefs Donald L. Ken- Lathrop Axe, neth B. Peter A. Martin and & Clark, argument by Heaney. Madison and oral Donald L. plaintiff-appellant-cross respondent For the there by McFarlane, was a David E. brief Melanie Cohen and Sinykin, argument by LaFollette & Madison and oral David McFarlane. alleges CROOKS, PATRICK J. N. L.L.N. priest assigned hospital Clauder,

that J. Gibbs as a chaplain by Madison, the Roman Catholic Diocese of (Diocese), position chaplain Inc. engage abused his relationship.

her in a sexual this, Based on (1) against claiming Diocese, L.L.N. filed suit that: (2) negligently supervised the Diocese Clauder; and, vicariously the Diocese liable for Clauder's actions.1 County, George The Circuit Court for Dane thrup, Judge, A. W. Nor- granting summary entered an order judgment2 published to the Diocese on all counts. against personally L.L.N. also filed suit Clauder for sexual (1987-88). exploitation therapist under Wis. Stat. 895.70 § court, This claim continues in the circuit and is not before court on review.

All further references are to the 1987-88 Statutes unless otherwise indicated. 2 granting The circuit court's order stated that it was However, court Diocese's motion to dismiss. since circuit accepted deposition transcripts and considered affidavits parties, submitted both we treat the motion as one for sum-

677 appeals decision,3 the court of affirmed the circuit grant summary judgment court's to the Diocese on liability the vicarious However, claims. the court of appeals grant summary reversed the circuit court's judgment negligent supervision on the claim. The Dio- cese seeks review of this reversal. Accordingly, only

¶ 2. issue before this court summary judg- is whether the Diocese is entitled to negligently supervised ment on L.L.N.'s claim that it Clauder. First, We conclude that it is. we hold that the First Amendment to the United States Constitution prohibits negligent supervision L.L.N.'s Second, claim. if even we assume that the First Amendment does not

preclude claim, L.L.N.'s we conclude that the undis- puted facts and all reasonable inferences drawn genuine therefrom do not establish a issue of material fact as to whether the Diocese knew or should have alleged propensity known about Clauder's to use his position chaplain sexually exploit patients whom summary he Thus, counseled. the Diocese is entitled to judgment as a matter of law on this basis as well. We appeals. therefore reverse the decision of the court of I . assigned ¶ 3. In 1984, the Diocese Clauder to chaplain Hospital4 serve as the at Meriter in Madison, working Wisconsin. While Meriter, Clauder resided at St. Bernard Catholic Church Madison. Father mary judgment. 802.06(2)(b); Clauder, See Wis. Stat. L.L.N. v. § (Ct. 1996). 570, n.2, 203 Wis. 2d 575 552 N.W.2d App. (Ct. Clauder, 3 L.L.N. v. 203 Wis. 2d 552 N.W.2d 1996). App. 4At the time assigned chaplain, Clauder was as a Meriter Hospital Hospital. was known as Madison General pastor parish at St. Bernard.5 While John Hebl was the parish, supervisory had no Clauder lived at authority Hebl parish addition, In Clauder had no over him. although responsibilities Bernard, he did occa- at St. sionally assist when asked. hospitalized

¶ 1988, was 4. November L.L.N. Hospital complications preg- her at Meriter for nancy. L.L.N., a Hebl asked Clauder to visit who was employee of St. Bernard. Clauder met member and hospital, during in which with L.L.N. at least once they pregnancy, politics, and their time discussed her pro-life interest movement. again hospi-

¶ 5. In December L.L.N. was having miscarriage, Hospital. talized at Meriter After he on one her, L.L.N. asked Clauder to visit which did grief losing They or two occasions. discussed her over discharged, baby. Clauder tele- the phoned After L.L.N. was recovery. check on her L.L.N. her at home to thank-you subsequently note and sent Clauder accepted. he lunch, invited him to an invitation which following ¶ months, L.L.N. and Clauder 6. In the They hospital. dined continued to meet outside the pro-life together, museums, ral- visited art attended politics, personal exchanged gifts, and lies, discussed alleges general. problems, L.L.N. she and life therapist pastoral her counselor and viewed Clauder as meetings, gave during her advice to he these because depression. help cope her with stress 29, 1990, Clauder invited L.L.N. 7. On June family's Dur- Rhinelander, Wisconsin. cabin near his they engaged ing intercourse at a visit, sexual They sexual rela- in Rhinelander. continued their hotel tionship May until Bernard, separate employed which is Hebl was St.

religious corporation from the Diocese. attempted keep 8. Both Clauder and L.L.N. relationship using secret,

their often However, aliases. relationship, 16, 1991, on June after she had ended the Bishop L.L.N. notified Cletus O'Donnell letter ofher undisputed sexual involvement with Clauder. It is that knowledge the Diocese had no actual of Clauder's involvement with L.L.N. before this time. Subsequently, Auxiliary Bishop George

¶ 9. Wirz anything asked Hebl whether he had ever noticed sus- picious regard to Clauder. Hebl informed Wirz of an years incident he had observed several earlier between Specifically, Clauder and woman, another T.E. one eve- ning p.m., yell help around 9:00 Hebl heard Clauder for private rectory. from his room in the When Hebl restraining entered room, Clauder's he found Clauder by straddling body a woman on the floor her and hold- ing bleeding down her hands. Clauder was from a bite recognized on his wrist. Hebl T.E., woman as whom he had met on a few occasions when Clauder had rectory separated invited her to the for meals. Hebl rectory. T.E., Clauder from and escorted T.E. out of the report anyone 10. Hebl did not this incident to revealing until after wrote the L.L.N letter her rela- tionship Bishop. with Clauder to the addition, In Hebl investigated any depo- never the matter further. his explained perception sition, Hebl his incident in this manner: Among things, question

Q. other did it raise the your mind about whether there were some sexual going activities on between Father Clauder and [T.E.]? put spin obviously

A. Let me this kind of on it. . . way, him, she attacked defending it seemed that and he was put any interpretation himself. You can I you signs, want on that. saw no visual none what- behavior, any intimacy soever of sexual attack or Now, none out person whatsoever. there could say, "Well, happened that must have or could have happened." put spin I did not that on it.

Q. suspicion you Was that a concern or had or you possibility? did dismiss that as not a realistic A. I never accused him of anything along ever line, any don't, I priests. just of the wouldn't think that's their behavior.. . .

Q. Now, you though [Clauder] even didn't accuse any [T.E.], sexual involvement with was that a thought your possibility? that was mind as a Oh, yeah, A. I think under circumstances which this there happened, possibil- could be ity, never, ... I never him of but... would accuse it....

(R.30 116-17.) investigated

¶ 11. If Hebl had this incident fur- ther, he would have discovered that T.E. and Clauder any day. However, not that did have sexual contact on have that Hebl also would discovered Clauder and T.E. relationship. Specifically, were involved a sexual family approxi- Clauder had become friends with T.E.'s mately years earlier, fifteen while Clauder was assigned priest as a at St. Dennis Catholic Church family Madison, at which T.E. and her were members. developed Subsequently, a more inti- T.E. Clauder relationship. They frequently together, mate dined events, went to social and Clauder even traveled to According Japan to meet T.E. on one occasion. to marry Clauder, him, T.E. wanted to but he refused. alleges that, of the T.E. inci- 12. L.L.N. because witnessed, dent that Hebl the Diocese knew or should posed abusing have known that Clauder a risk of his position hospital chaplain sexually exploit as a patients Accordingly, whom he counseled. L.L.N. filed negligent supervision against a claim for the Diocese May May 28, 31, 1994, on 1993. On the Diocese filed a summary judgment, contending motion for negligent supervision precluded by claim is the First require Amendment because it would the court to parishioner determine the standard of care owed a supervision clergy. hearing January At a held on granted summary judgment 3, 1995, the circuit court appeals the Diocese on this basis. The court of concluding "[t]o reversed, resolve claim, L.L.N.'s interpret weigh factfinder need not church doctrine merely determine, but law, under neutral rules of person whether, facts, under the a reasonable would placement know or should have known that Clauder's hospital chaplain likely was to result in harm." Clauder, L.L.N. v. 203 Wis. 2d 585-86, 552 (Ct. 1996). App. N.W.2d 879

I I . Procedurally, ¶ 13. this case is before the court pursuant grant summary judg- to the circuit court's grant summary ment to the Diocese. We review judgment applying novo, de the standards set forth in 802.08(2) § Wis. Stat. in the same manner the circuit applies e.g., Pope, See, court them. v. 194 Wis. 2d Kafka (1995); City 234, 240, 533 491 N.W.2d Voss v. Mid- (1991). dleton, 162 737, 748, Wis. 2d 470 N.W.2d 625 Specifically, pleadings a court first examines the determine whether a claim for relief is stated and presented. e.g., whether a material issue of See, fact is Voss, 162 747; Boss, Wis. 2d at Grams v. 97 Wis. 2d

682 (1980). examining 338, 294 N.W.2d 473 When the suffi- ciency complaint, of a a court takes as true all facts pleaded by plaintiff and all inferences that can reasonably be derived from Voss, those facts. 162 See Wis. 2d at 748. pleadings

¶ 14. If the state a claim and demon strate the existence of issues, factual a court next moving party's proof considers the affidavits or other moving party prima determine whether the has made a 802.08(2).6 summary judgment § facie case for under e.g., See, Voss, 162 Wis. 2d at 747-48; Grams, 97 Wis. moving party prima 2d at If 338. has made a facie summary judgment, opposing party case for must proof, show, affidavit or other the existence of dis puted undisputed material facts or material facts from may which reasonable alternative inferences be drawn opposing party that are sufficient to entitle the to a e.g., See, trial. Voss, 162 Wis. 2d at 748; Grams, 97 Wis. proof may 2d at 338. Such be less than is sufficient to prove opposing party's case, but must be substan genuine tial and raise issues of material fact. See Leszczynski Surges, v. 30 534, 539, 141 Wis. 2d N.W.2d (1966). 261 Therefore, in order to be entitled to sum-

mary judgment, moving party prove must genuine any "there is no issue as to material fact and moving party judgment that the is entitled to a as a moving If the party, defendant is the the defendant must plaintiffs establish a defense that defeats the cause of action. City Middleton, 737, 748, 470 See Voss v. 162 Wis. 2d N.W.2d (1991). 802.08(2); § Grams, matter of law."7 Wis. Stat. see also proof other 97 Wis. 2d at 338. The affidavits and sub light by parties mitted are viewed most opposing party. to the See Delmore v. Ameri favorable Family Co., 510, 512, 118 Wis. 2d 348 can Mut. Ins. (1984). any Likewise, as to the exis N.W.2d 151 doubts genuine of material fact are resolved tence of issue against moving party. e.g., See, Rollins Burdick Hamilton, 460, Hunter Inc. v. 101 Wis. 2d of Wisconsin, (1981) (quoting Maynard 470, 304 N.W.2d 752 v. Port Publications, 562-63, Inc., 98 Wis. 2d 297 N.W.2d (1980)); However, Grams, 500 evidentiary 97 Wis. 2d 338-39. forth in the affidavits other

facts set proof by are taken as true a court if not contradicted opposing proof.8 Leszczynski, affidavits or other 30 See Wis. 2d at 539.

¶ 16. The issue of whether the First Amendment prohibits to the United States Constitution L.L.N.'s negligent supervision question claim of law. for is See County, Association Prosecutors v. Milwaukee State (1996). 549, 557, 199 Wis. 2d 544 N.W.2d 888 We questions giving novo, de no deference to review of law e.g., See, courts. id. lower 7 summary purpose As this court has stated: "The of the try judgment procedure not to issues of fact to trials but avoid nothing try." where there is Burdick Hunter Rollins Wis consin, Hamilton, 460, 470, Inc. v. 101 Wis. 2d 752 N.W.2d (1981). 8"Pleadings proof are ineffectual as because facts stated precedence allegations an take over in a affidavit inconsistent pleading." Leszczynski Surges, 534, 539, v. 30 Wis. 2d (1966). N.W.2d 261

I I I. pleadings 17. We first must examine the determine whether a claim for relief is stated and presented. whether a material issue of fact is In her complaint, alleges negli L.L.N. that "the Diocese was gent .[flailed properly supervise in that it. . (R.2 8.) Clauder. . . ." at This court has not determined negligent supervision whether a claim for exists. See Archdiocese Milwaukee, 194 Wis. 302, 2d Pritzlaff v. (1995), 325, 533 N.W.2d 780 cert. denied, 116 S. Ct. 920 (1996); Isely Capuchin Supp. v. Province, 880 F. 1138, (E.D. 1995). purposes 1151-53 Mich. However, for this case, we assume that such a exists, claim without deciding the issue. See Pritzlaff, 194 Wis. 2d at 325-26 (assuming, deciding, negligent without that a claim for exists). supervision Accordingly, we are satisfied that pleadings state a claim. In addition, the Diocese (R.4 6.) allegations denied L.L.N.'s in its answer. pleadings present Thus, we also conclude that the existence of factual issues.

¶ 18. We therefore must examine the affidavits proof and other submitted the Diocese to determine prima summary whether it has made a facie case for 802.08(2). judgment § under Wis. Stat. The Diocese grounds upon sets forth two which it is entitled to sum- mary judgment. First, the Diocese contends that negligent supervision prohibited L.L.N.'s claim for by the First Amendment. Second, based on the undis- puted facts and all reasonable inferences drawn argues therefrom, the Diocese that it neither knew nor alleged propensity should have known about Clauder's position chaplain sexually exploit to use his patients whom he counseled. Amendment Questions

A. Constitutional —First Amendment to the United States 19. The First through to the states Constitution, applicable Amendment,9 shall provides: "Congress Fourteenth religion, an establishment make no law respecting The first the free exercise thereof. ..." prohibiting Clause, and to as the Establishment clause is referred Free Exercise Clause.10 See Ronald the second as the on Constitu- Treatise Nowak, & John E. D. Rotunda (2d & Procedure 21.1, at 446 tional Law: Substance § 1992). doctrine, which prohibits The entanglement ed. religion, governmental entanglement excessive Holy Clause.11 See from the Establishment springs School, Kahl, Holy Trinity Community Inc. v. 82 Wis. 9 See (1978); denied, 139, 150, 262 cert. 439 U.S. 823 2d N.W.2d Nowak, on Constitu Ronald D. Rotunda & John E. Treatise (2d 21.1, & Procedure at 446 & n.2 ed. tional Law: Substance § 1992). 10 arguments, the Diocese making its constitutional Clause. See Petitioner's primarily relies on the Establishment Brief, 19, at n.17. 11 Kurtzman, (1971), v. 403 U.S. 602 Specifically, Lemon Supreme Court held that where a violation of the Establish the alleged, apply three-part must test to ment Clause is a court challenged passes constitutional whether the law determine (2) (1) purpose; legislative the have a secular muster: law must neither principal primary or effect must be one that its (3) religion; it not foster an nor inhibits and must advances religion. governmental entanglement with Id. at excessive School, Inc., 612-13; Holy Trinity Community 82 Wis. see also test). (explaining three-part 2d at 150 However, 1990s, Supreme in the Court has neither formally rejected it. consistently applied three-part test nor Yet, concept on the of Supreme Court has continued to focus neutrality making involving the Estab- religious decisions Nowak, 21.3, supra 4 & at 86 § lishment Clause. See Rotunda 686 Trinity Community School, Inc. Kahl, v. 82 Wis. 2d cert, 139, 150, 262 N.W.2d 210, denied, 439 U.S. 823 (1978); supra § 4 & Nowak, 21.3, Rotunda at 457. governmen- It is well-settled excessive entanglement religion tal required with will if occur a court is interpret policies, practices; law, church prohibits therefore, inquiry. the First Amendment such an Isely, Supp. (collecting See 880 F. at 1150 cases); (Colo. v. Colorado, 310, Moses Diocese P.2d of cert, 1993), (1994); denied, 511 U.S. 1137 Prit- equally zlaff, 194 2d at However, Wis. 327—29. it is may well-settled that court hear if an action it will principles involve the consideration of neutral of law. Isely, Supp. F. 1150; See at Moses, 863 P.2d at 320.

¶ 21. We therefore must consider whether the negligent supervi determination L.L.N.'s claim for apply principles sion would allow a court to neutral substantially law. We considered a similar issue in v. Archdiocese Milwaukee, 194 Wis. 2d Pritzlaff (1995), 533 N.W.2d 780 denied, cert. 116 S. Ct. 920 (1996). alleged Judith M. Pritzlaff that Father John relationship position Donovan used his and his as a priest relationship to coerce her to have sexual brought against him. Id. at 308. Pritzlaff claims negligently hiring, retaining, training, Archdiocese for supervising priest. Id. 309-10. Pritzlaff fur ther claimed that the Archdiocese knew or should have priest problem." known that the "a had sexual Id. at 1996). fact, (Supp. neutrality the of concept prin- is central ciple religious under of the of both clauses the First (2d 1992). 21.1, Therefore, § Amendment. Id. at 447 ed. our analysis negligent on claim supervision focuses whether the application law, would involve the of principles neutral of rather than the Lemon test. a motion brought the Archdiocese Subsequently,

310. Id. grounds. Amendment on First to dismiss First first determined This court religious entity against claims prohibits Amendment claims retention, such or because hiring negligent for cleric" a "reasonable develop a court to require would interpreta- involve the care, which would of standard Id. internal church policies. canons and of church tion concluded: Second, this court 326-28. training super- and into the Although inquiry state inquiry into a closer issue than clergy of vision under some practices because hiring and retention might be able questions such limited circumstances of determining questions without to be decided prohib- it is nonetheless policies, and church law Amendment if not under most by the First ited all circumstances. added). further The court 328 (emphasis

Id. at explained: of policies practices into the

[A]ny inquiry their hiring supervising in church Defendants Amendment the same kinds of First clergy raises above, which entanglement discussed problems of making judg- sensitive the court might involve church propriety ments about religious light of their supervision Defendants' each have traditional denominations The beliefs.... as to principles governance, their own intricate visitation. Church right has no which the state scripture, modified is founded governance two millennia. reformers over almost and uncon- inappropriate It would therefore also be fact after the for this Court to determine stitutional the ecclesiastical negligently authorities supervised Any retained the defendant Bishop. award of would damages chilling have a lead- effect ing indirectly to state over control the future denomination, of a religious conduct affairs result violative history of the text and of the estab- lishment clause. (quoting Bishop, Supp.

Id. at 329 Schmidt v. F. 779 (S.D.N.Y. 1991). Applying principles, 321, 332 these negligent this court held that Pritzlaffs claim for supervision precluded by was the First Amendment require inquiry because it would practices, an laws, into church policies. and Id. at 330. Clergy Confronting 23. Sexual Misconduct: Liability Constitutional & Institutional Difficult (1994),

Issues, 7 St. L. Thomas Rev. 31 an article cited O'Reilly several court,12 times James T. Pritzlaff and Joan M. Strasser further elaborate on the reasons why duty "the measurement of and reasonableness negligence inevitably entangle needed to find will religious prac- discipline civil court in the nuances of example, O'Reilly tices." Id. at 39. For and Strasser state disciplinary procedures Roman Catholic Church has internal by relig-

that are influenced mercy. They ious belief reconciliation and Id. at explain: counseling

The reconciliation of the errant person clergy involves more a civil employer's than reprimand day pay file or three suspension without Mercy may for misconduct. and forgiveness of sin be concepts they place familiar to bankers but have no 12 Milwaukee, See v. Archdiocese 194 Wis. 2d Pritzlaff n.3, 326-27, (1995), denied, 316 cert. S. Ct. 920 (1996). clergy, they are in the of bank tellers. For discipline practices. norms and interwoven in the institution's strong Therefore, to this belief Id. at 45-46. due may wayward redemption, bishop that a a determine sufficiently through reprimanded priest coun- can be seling prayer. If a asked to review such and court was bishop have whether the should conduct determine directly action, taken entangle other the court would some religious faith, doctrines itself responsibility, 31, 43-46; also and obedience. Id. at see (quoting F. Schmidt, 194 2d at 329 779 Pritzlaff, Wis. 332). Supp. at explain O'Reilly Likewise, and Strasser negligent require supervision would a court

that claims standard, a "reasonable cleric" which to formulate vary depending i.e., rea- involved, on the cleric would Presbyterian pastor standard, reasonable sonable archbishop Schmidt, and so on. standard, Catholic See Supp. Roppolo Moore, 328; F. v. 644 So. 2d 779 at (La. 1994), App. denied, 2d 253 208 Ct. writ 650 So. (1995);13 O'Reilly supra, at Such Strasser, & 43-46. required because, standards would be individualized prac- previously mentioned, church doctrines and as supervision and tices are intertwined with the discipline clergy. O'Reilly supra, at Strasser, & O'Reilly Strasser "Our However, 43-46. and state: society having jurists pluralistic its neutral dislikes place chief role of 'reasonable themselves bishop,' degree of rabbi,' etc., of the 'reasonable because accompany must such decisional involvement judge." fur- civil Id. at 46. This framework for the tort why negligent explains held ther court 13 in Prit- Roppolo approval Schmidt and were cited 2d Pritzlaff, See Wis. at 329. zlaff.

supervision "prohibited claims are the First Amend- ment under most if not all circumstances." See Pritzlaff, Wis. 2d at 328. Turning present argues

¶ 25. to the case, L.L.N. distinguishable that this case is from because Pritzlaff hospital chaplain Clauder was a whom L.L.N. viewed pastoral counselor, as her whereas involved Pritzlaff relationship priest parishioner. sexual between and a argues hand, On the other the Diocese that this case is indistinguishable priests from because Pritzlaff, and hospital chaplains essentially perform the same functions. chaplain spiritual 26. A takes care of the needs (R.13 hospital patients their families. at 2; R.15 58,145.) According 105; R.30 at to Clauder, a Roman chaplain accomplishes by saying

Catholic this task daily visiting patients, administering mass, the sacra- satisfying prayer requests, counseling ments, and (R.30 145.) groups. individuals or at Clauder testified deposition chaplain in his that a the duties of are differ- parish priest they ent from a in that are more focused spiritual possibly hospi- on the and emotional needs of (R.30 58-59.) patients. tal at chaplain's appear

¶ 27. Therefore, a duties simi- parish priest, lar the to duties of a albeit more focused hospital setting.14 particular, although chap- in a In a may provide counseling patients, lain to function is unique chaplains. priests not to Parish also counsel congregations. Schmidt, members of their See 779 F. 14Although nothing explicitly in the record sets forth the of a parish priest, duties in deposition Clauder testified his the parish about similarities of the duties priest chap of a and (See 58-59.) addition, during lain. R.30 at the oral arguments, attorney the for the Diocese detailed the similarities. (stating clergy

Supp. denomina- at 327 that most provide counseling of their to members tions (indicating congregations); Moses, at 328 863 P.2d church). parishioners priest at counseled priest Accordingly, parish was a the fact that Donovan chaplain a rea- does not constitute and Clauder was distinguish from this case. son to Pritzlaff alleged Furthermore, in Pritzlaff Pritzlaff, priest position priest to used his as a that the involved develop relationship she like" with her while "friend relationship then student, and abused was coercing See have sex she was an adult.15 her to when Appen- Complaint, in s contained Petitioner's Pritzlaff Respondent's in 34; Brief at see also dix Pritzlaff, Similarly, case, in this L.L.N. stated Pritzlaff, at 2. Bishop "[Clauder] me in letter O'Donnell: met her very my hospital point life and at a low part my per- significant me. He became a befriended (R.15 life me to meet his own needs."16 sonal and used 141.) Allegedly, both and Donovan used at Clauder position priests to induce their victims to trust their as rely reli- them, on and then that trust and abused having sex; therefore, ance to coerce their victims into her priest It is viewed the unclear whether Pritzlaff counselor, in Prit- record before the court pastoral because the very Pritzlaff, 194 Wis. appears to have been limited. See zlaff 306-11; Pritzlaff, 2-7; Respon Brief in at 2d Petitioner's likely Pritzlaff, at dent's Brief in 2-3. This is because Pritzlaff dismiss, on a and therefore was before the court motion Prit- only pleadings to determine whether court considered Pritzlaff, 2d at zlaff had stated a claim for relief. See 194 Wis. 311-12. 16 at her However, it should be that L.L.N. testified noted calling longer friendship it after deposition: no comfortable "I'm (R.15 29.) I've learned." what

692 appears alleged relationship it that Clauder's with alleged relationship L.L.N. was similar to Donovan's agree Thus, with Pritzlaff. dowe not with L.L.N. that factually distinguishable this case is from on Pritzlaff ground. this recognize, ¶ 29. doWe however, that case very specific differs from allegation it involves a Pritzlaff particular, of notice to the Diocese.17 In argues obligated inquire L.L.N. was Hebl to into relationship witnessing Clauder's after T.E. rectory. incident in the investigated L.L.N. claims if that Hebl had

further, he would have discovered Clauder's sexual involvement with Therefore, T.E. through that, L.L.N. contends Hebl, the Diocese had knowledge constructive of the T.E. incident and relationship Clauder's sexual with T.E. Based on such knowledge, constructive L.L.N. claims that the Diocese propensity should have known of Clauder's to abuse his position chaplain sexually to become intimate with patients. allegations specific 30. However, these only

notice further establish that a court would be required interpret to ecclesiastical law order to negligent supervision decide L.L.N.'s First, claim. agency principal only imputed law, under has knowl- edge agent gains acting an information which while authority principal, within his or her bind the agent duty give prin- information an which has a cipal. See v. Peckham, Ivers Pond Piano Co. v. 29 Wis. (Sec- (1966); 2d 369, 139 N.W.2d Restatement only Because of the limited record in Pritzlaff, court allegation complaint considered the bare in Pritzlaffs that: "The ARCHDIOCESE knew or have should known that DONO problem VAN had a prior Pritzlaff, sexual to 1959...." 194 Wis. 2d at 310. (1957).

ond) Agency § to case, in order authority acting to his Hebl was within determine that incident, he the T.E. the Diocese when witnessed bind duty give about a to the Diocese information or had required Clauder, to consider church court would be a practices. policies, undis- assign or This is because the law, puted did not that Diocese record indicates authority position Clauder, as an over such to a Hebl employer supervisor. "I stated in an affidavit: or Hebl my authority capacity no over Clauder had Gibbs 2.) (R.33 pastor at of Bernard Church or otherwise." St. report responsibility Hebl had no to Therefore, any Diocese, other than Clauder's behavior to may poli- responsibility law, he have had under church practices. not to cies, Thus, or a court would be able apply solely principles of law to determine neutral knowledge of the Diocese had constructive whether the contrary incident, to the First Amendment.18 T.E. Diocese Second, even if we assume relationship knowledge of had constructive Clauder's a court be T.E., further conclude that would we celibacy interpret required consider and the vow of to negligently the Diocese in order to determine whether deposition transcripts supervised sub- Clauder. The a not mitted the Diocese demonstrate T.E. was a interpreted This not to mean that decision should be agent whether cleric is or court can never determine a an acting religious organization, a cleric is employee of a whether organization, or authority religious his to a within or her bind duty give religious organization has a to whether cleric may violating possible an be without inquiry information. Such However, inquiry prohibited First Amendment. such an here, duty give or authority to bind the Diocese where Hebl's only by reference the Diocese information can be determined law, practices. policies, church

patient counseled, but instead was whom Clauder parishioner family the church adult friend and deposition transcripts priest. The where Clauder was relationship with T.E. that Clauder's establish also meals, numerous that involved an extensive one was trip Japan. Since these and even a to activities, social unopposed, accept deposition transcripts are we must Leszczynski, 30 Wis. 2d at 539. as true. them See undisputed demonstrate that 32. These facts engaged single in a consensual sexual Clauder, man, non-patient. single, relationship adult, female an argues construc- that because of the Diocese's L.L.N. knowledge should have taken this, of the Diocese tive supervising as Clauder, such other action some removing chaplain. in order to hold However, him as duty L.L.N., of for breach of a care the Diocese liable required that construc- to determine a court would be knowledge with T.E. of Clauder's involvement tive by triggered response the Dio- a different should have exposed attribute involvement a bad cese, because such 327-29; Moses, 863 P.2d at character. See Clauder's (1957). (Second) Agency §213 Yet, Restatement determination, would be a court order to make this celibacy, required since vow of sexual to consider the by single consenting not adults are committed acts only wrong wrong,19 legally under but instead become Roppolo, 2d at 208. 644 So. church doctrine. See essentially arguing Accordingly, Dio- is that the L.L.N. duty a non-secular to her than cese owes a heavier religious employer doctrine. How- because of a would ever, one court has stated: consenting by single committed adults would Sexual acts presence of others. See legally wrong if committed in the

only be 944.20(1)(a). Wis. Stat. § celibacy

The by clergy vow of a religious decision religious belief; based upon it does not create a civil duty. Under the free exercise clause of the First Amendment, may the state compel not affirmation religious of a impose belief nor requirements based any on religion. [Citation belief omitted.] Thus greater the church had no civil duty upon based its religious tenets.

Roman Catholic Bishop Diego San v. Court, Superior (Cal. 1996). 50 Cal. Rptr. 2d Ct. App. Simi- larly, another court has indicated: may

What be viewed as sexual misconduct one religion may permitted be encouraged by or even plaintiff requests another. To do as require would apply Court to different standards different litigants depending religious on their affiliations. This is a secular If or court. sexual of other conduct priest standards, e.g., violates secular child moles- tation, this impose Court will whatever civil or criminal may secular sanctions appropriate. be But this authority Court has no to determine or enforce religious standards of conduct and duty.

Roppolo, 644 So. 2d at 208. 33. Moreover, to determine whether Clauder

violated his vow of celibacy, a court would be required to parameters consider the of the For vow. this court to examine the vow of and celibacy, the church's or action inaction when faced violation, with an alleged would excessively the court in entangle religious affairs, con- to trary the First Amendment.20 See Pritzlaff, Wis. 2d at 328-30. questions why The dissent a court required would be to

interpret and consider celibacy, the vow of since "Clauder’s of celibacy breach his proves nothing vow alone legal signifi of Dissenting cance." op. However, case, at 712. in L.L.N. prima facie Thus, the Diocese has made establishing judgment by summary that, case for claim, a court would be to decide L.L.N.'s order celibacy. required addition, of examine the vow to to determine that, order the Diocese has established authority acting to within bind that Hebl was his incident, had a the T.E. or when he witnessed Diocese duty give Clauder, a information about the Diocese to poli- required law, to church consider court would be practices. or shown, not affidavit cies, or L.L.N. has notice of Clauder's risk Diocese had constructive claims that the alleg- precisely Clauder sexually exploiting because women celibacy T.E. This is clear from the edly his vow of breached among during arguments following exchanges made oral McFarlane, attorney for L.L.N.: justices and David counsel, your accept, Even if I were to Justice Bablitch: .... obligation inquiry, make and there is an to some statement that today inquiry reveals assuming what the record that the revealed relationship, why T.E.'s] . . would that have [Clauder . about whatsoever, here, any relevance, any the issue which relevance put was a on notice that this man the Diocesewas somehow predator patients? sexual regard no for his vow it showed that he had McFarlane: Because celibacy. you question did not want But the Justice Geske: .... wrong somebody, fundamentally for it is answer is whether not single person, single person, with another to have sexual relations only wrong it] of the becomes the context [or whether or not celibacy. priest engaged in vow of in which this a church doctrine your saying wrong, I'm Honor. McFarlane: I'm not that's response. saying triggered some that that should have triggered should have That the church doctrine Justice Geske: inquiry. that does it. the church doctrine the It's facts, including of the vow the whole context of McFarlane: It's celibacy. 697 proof, disputed other of existence material facts or undisputed material facts from which reasonable alter- may native inferences be drawn that are sufficient to Accordingly, entitle her to a trial. the Diocese has summary judgment demonstrated that it is entitled to aas matter of law because court would not be able to apply principles law; neutral of therefore, the First precludes negligent Amendment L.L.N.'s claim for supervision. Sufficiency Assuming

B. of No Constitu- Notice— tional Violation ¶ 35. Even if we assume that the First Amend- prohibit ment does not claim, L.L.N.'s we conclude that undisputed facts and all reasonable inferences genuine drawn therefrom do not establish issue of regard material fact in to the element of notice. There- summary judgment fore, the Diocese is also entitled to as a matter of law on this basis. explicitly recog 36. Since this court has not negligent supervision

nized the existence of a claim for jurisdictions Wisconsin, we must look to other determine the elements of the In Moses, claim. Supreme quoted P.2d at Court of Colorado Agency Restatement in order to delineate such elem of Agency provides ents.21 The Restatement of 21Although the Moses court on relied the Restatement of Agency, negligent note that a supervision claim for "is not based upon any principal agent rule the law of or of master and (Second) (1957). Agency servant." Restatement § cmt. Instead, such a a special claim "is application general of the Therefore, rules stated in the Restatement Id. Torts." a claim negligent for supervision is distinct from a for claim vicarious liability, in that the former is on principles based tort and the latter agency principles. is based on specifically, More with a activity "A an conducting part: person pertinent liability to agents subject servants or other is through if he or negligent from his conduct is resulting for harm of the ..." supervision activity. reckless in the ... (Second) (1957), 213 Agency quoted Restatement § of to 213 Moses, 863 P.2d at 329. Comment d states: § Liability results under the rule stated this Sec- tion, parties, of the relation of the but not because antecedently to employer because the had reason exist that an undue risk of harm would believe subject employment. employer of The is because liability only for harm as is within the risk. to such therefore, of If, quality risk exists of the because only liability to the extent employee, there is by the of the quality the harm is caused sup- had to employee employer which the reason pose cause harm. likely would be is for Therefore, employer at 213 cmt. d. an liable Id. § if it knew or have only should negligent supervision would a third subject party known that its employee id.; Moses, 863 an risk of harm. See P.2d unreasonable at 329. claim, vicariously liability alleged to employer

vicarious an is be negligent committed its for a act omission liable City employment. Shannon v. employee scope in the of See of (1980); Milwaukee, 364, 370, 2d 289 N.W.2d Wis. 219(1). (Second) Thus, Agency vicarious liabil- § Restatement solely relationship of a master and ity agency on the based claim, contrast, an negligent supervision with a servant. negligent or omis- alleged act employer is to be liable for a Therefore, supervising employee. it its sion has committed solely relationship of the liability result does not because independent employee, of the employer but instead because (Second) Agency negligence employer. of the See Restatement 213 cmt. d. § present undisputed

¶ case, 37. In the it is that knowledge the Diocese had no actual of Clauder's alleged tendency chaplain position to abuse his as until relationship after the sexual between and L.L.N. parties disagree However, Clauder ended. the as to the whether Diocese should have known about alleged propensity position. Clauder's to abuse his As previously explained, argues L.L.N. that the Diocese knowledge had constructive of the T.E. incident and relationship through Clauder's with T.E. Hebl. Based knowledge, on such constructive L.L.N. claims that the propensity Diocese should have known about Clauder's chaplain position sexually exploit to use his patients. as to undisputed ¶ 38. We conclude that the facts and all reasonable inferences drawn therefrom do not genuine a demonstrate issue of material fact as to whether the Diocese should have known about alleged propensity position Clauder's to use his as chaplain sexually exploit patients. to Even if the Dio- knowledge cese had constructive of Clauder's relationship put T.E., with this would have the Diocese may again notice, most, on that Clauder have con- single, sensual sexual adult, relations with a non- patient. illogical However, it is to conclude that such knowledge put constructive was sufficient to the Dio- likely cese on notice that Clauder was to his abuse position chaplain engage patients vulnerable sexual intercourse. point, To 39. illustrate this consider the same setting. Suppose

set of facts in a non-secular an that employer single of a counselor witnessed the counselor Suppose in a situation similar to the T.E. incident. employer investigated matter, into the and discovered involved in a sexual relation- the counselor was patient ship woman, was not a was who put Surely, single not this alone would adult. likely employer was the counselor on notice provide sexually exploit patients. most, At it would his employer was not celi- that the counselor notice to the in this case. The same is true bate. agreed with this one court has At least analogous setting. Catholic In Roman in an

rationale Rptr. Diego Superior Bishop 2d Court, 50 Cal. v. San (Cal. 1996), fifteen-year-old plaintiff, App. Ct. hiring negligent alleged female, that the church was priest priest if had if it he because, had asked celibacy, problems church would with his vows of priest in had involved that the been have discovered relationships parishioners. Id. adult with three sexual church had "Even if the The court concluded: at 405. prior [the priest's] adults, affairs with sexual learned of illogical antici- church should have it is pated to conclude the [the priest] crimes on commit sexual would Similarly, if Diocese had con- even a minor." Id. relationship knowledge sexual of Clauder's structive put on notice Diocese not have T.E., this would position alleged propensity abuse his of Clauder's chaplain engage patients intercourse. in sexual prima facie Thus, has made a 41. the Diocese regard summary judgment in to the element for case have knew or should the Diocese notice —whether subject to an unrea- L.L.N. Clauder would known that by shown, has not affidavit ofharm. L.L.N. sonable risk disputed proof, fact or existence of material other undisputed alter- from which reasonable material facts may sufficient to be that are inferences drawn native Accordingly, undisputed entitle her to trial.22 since the and all facts reasonable inferences drawn therefore do genuine not demonstrate issue of material fact regarding summary notice, the Diocese is entitled to judgment as a matter of law. response dissenting opinion's In to the con- rectory

clusion that the T.E. incident in the raises a engaged reasonable inference that Clauder ually in was "sex- T.E., assaultive behavior" toward we acknowledge selectively that the chosen facts as char- acterized the dissent could raise such an if inference However, viewed isolation. the dissent fails to con- sider the facts us in the before context the entire required summary judg- record, which we are to do on Oosterwyk ment. See Bucholtz, 521, v. 250 Wis. (1947) (court jury N.W.2d 361 must consider whether a question is raised "on based the whole record on made summary judgment"). the motion for a ¶ 43. The T.E. incident, viewed the context of record, the whole does not raise a reasonable inference engaged "sexually that Clauder was assaultive hyperbole, Rather, behavior." when viewed without an entirely picture presented. particular, different it arguments Counsel for L.L.N. asserted at oral that there genuine is a issue of regard material fact in to whether T.E. was patient However, whom Clauder counseled. L.L.N. not has evidentiary submitted facts in proof the affidavits or other support this contrary, assertion. To the the affidavits submitted by the family Diocese indicate that T.E. was a friend that priest Clauder met while he assigned was to St. Dennis. Since by opposing fact is not contradicted affidavits or other proof, summary we must take purposes judg it as true for Leszczynski, ment. See 2d Wis. at 539. We therefore conclude genuine there no is issue of material fact regarding patient. whether T.E. was a undisputed engaged that T.E. and Clauder were in a

relatively long relationship. and consensual It is undis- puted that Clauder and T.E. attended social events together, together, traveled abroad and often dined together rectory including in residents, the with other Hebl. undisputed night Likewise, 44. it is that on the incident, it was Clauder, T.E., not who called for help. undisputed

Hebl's It is that when Hebl entered stop restraining the room and told Clauder to T.E., responded, going "No, Clauder can't, I she's to hurt (R.30 113.) undisputed me." at It is that once Hebl separated they very Hebl, Clauder and were both calm. thought It is obvious that Hebl T.E. had attacked deposition: Clauder. Hebl stated in his "I mean, obvi- ously way, him, she attacked it seemed that and he was defending put any interpretation you himself. You can signs, on want that. I no saw visual none whatso- any intimacy ever of sexual attack or (R.30 116.) (Empha- behavior, none whatsoever." added.) Finally, undisputed night, sis it is that on that engaged Clauder and T.E. had not in sexual conduct. light Thus, in entire record, there simply disputed undisputed no are material facts or may material facts from which a reasonable inference be drawn that Clauder was engaged "sexually night assaultive behavior" toward on T.E. wit- Hebl Although suggests nessed the incident. the dissent such an inference exists because Hebl affirm- answered atively deposition when in a asked whether it was "hypothetical possibilities," within the realm of deposition questions way give and answers no rise to engaged a reasonable inference that Clauder in fact "sexually assaultive fact, behavior" toward T.E. no argued one, not even L.L.N., has ever that the facts give stands inference.23 The dissent rise to such an making this assertion. alone summary, the First we conclude that In negligent precludes claim L.L.N.'s for Amendment supervision not con- claim involve because the would principles Instead, of law. of neutral sideration interpret require law and a court to church claim would governmental policies, in excessive would result which religion. particular, entanglement in order to In authority acting to his was within determine that Hebl incident, he witnessed the T.E. the Diocese when bind give duty information about to the Diocese or had a required church Clauder, be to consider a court would practices. policies, addition, in deter- order to law, duty to Diocese a owed mine whether the breached interpret required priest's to L.L.N., a court would be celibacy. Furthermore, if we assume that even vow of claim, we does not bar L.L.N.'s the First Amendment undisputed all facts and reasonable conclude that the genuine therefrom do not establish inferences drawn regard the Diocese to whether issue of material fact alleged known about Clauder's or should have knew sexually chaplain position propensity to use his patients exploit Thus, counseled. the Diocese whom he summary judgment of law on as matter is entitled this as well. basis appeals

By court of Court.—The decision of the is reversed. argued Although impliedly that L.L.N. the dissent claims "sexually behavior" toward engaged in assaultive that Clauder see To 714-15, is not the case.

T.E., dissenting op. at arguments, asked L.L.N.'s contrary, during oral Justice Geske sexual assault in this case?" attorney, any "Is there evidence of case, certainly there was attorney replied, The "Not in this but T.E." physical contact with some

¶ (concurring). 47. WILLIAM BABLITCH, A. J. I join part majority opinion that of the that holds that summary judgment the Diocese is entitled to as a mat- ter of law as to the element of notice. I However, would not reach the First Amendment issue. The court does generally questions not decide constitutional if the case grounds. can be resolved on other Labor and Farm Party Board, v. Election 117 Wis. 2d 351, 354, 344 (1984). opinion N.W.2d I state no as to that issue. ¶ (dissenting). 48. ANN WALSH BRADLEY, J. I reviewing dissent. After record I case, con- genuine clude that there is a issue of material fact as to whether the Diocese should have known that Clauder's placement hospital chaplain likely as a was to result in party. majority harm to a third I also conclude that the unnecessarily erroneously has reached and resolved presented the First Amendment issue in this case. negligent supervision 49. For L.L.N.'s claim1 to summary judgment, survive the Diocese's motion for support genuine the record must the existence of a 1) following issue of material fact on the issues: that employee Clauder anwas of the Diocese at all relevant 2) engaged sexually times; that Clauder harmful position T.E., behavior toward hospital chaplain and later used his as a 3) sexually exploit L.L.N.; to that engaged Hebl or knew should have known Clauder 4) sexually harmful T.E.; behavior toward knowledge imputable Hebl's to the Diocese. The majority appeals reverses the court of and reinstates grant summary judgment the circuit court's on the basis that the record is devoid of facts inferences I majority, Like the deciding assume without that Wiscon recognizes sin negligent supervision. a claim for tending on Diocese was that the to establish from facts tendency sexually exploit alleged notice of Clauder's disagree. I women. only proposition supported If the record had broken that Clauder was on notice

that the Diocese celibacy, would be entitled the Diocese his vow summary judgment. failed to abstain Clauder While strictly ais indiscretion sex, ecclesiastical from such a stranger however, are, other law. There to the secular which in the record from facts and inferences facts genuine fact on the notice issue of material raise claim. element L.L.N.'s p.m., evening Hebl

¶ 9:00 around 51. One hearing living quarters after Clauder's entered help. Upon entering, cry Hebl observed for Clauder straddling following: blouse T.E.; T.E.'s Clauder was bleeding a from bite torn; hand was was and Clauder's wound. analysis majority's of sum-

¶ Critical to the 52. mary judgment and its of the facts is its narrow view incident as a "consensual of the T.E. characterization majority relationship." that The concludes sexual undisputed "[t]hese Clauder, that facts demonstrate single engaged relation- sexual man, a consensual Majority op. ship I at 695. submit ..." with an adult. bleeding encountering at the Clauder, who was that straddling she T.E. while bite, from a and was wrist ripped lying blouse, on the floor with on her back was that this is some- inference lead to reasonable can thing relationship." It a "consensual sexual other than that Clauder was inference to a reasonable can lead sexually engaged behavior. assaultive who had on as a woman knew T.E. Hebl rectory. He knew prior at the Clauder occasions visited Japan spend to time with to had traveled that Clauder acknowledged her. He even that at the time of the thought something might encounter he sexual going have been on between Clauder and Later, T.E. alleged injuries, after L.L.N. notified the Diocese of her reported auxiliary bishop he this encounter to the "suspicious." it described

¶ 54. However, at the time of the incident he questions reports. Why? asked no and made no As explained by disappointment Hebl: "This was such a to just forget me, I wanted about it." expert plaintiff 55. Two witnesses for the opined triggered the incident should have an might awareness Hebl and the Diocese that Clauder tendency engage inappropriate have a behavior with women and such awareness should led have to an evaluation. Dr. Gonsiorek stated: situation,

In this it negligent was Diocese of Madison place to continue to Reverend Clauder as a hospital chaplain without such evaluation. In that placement, the Diocese should have known that Reverend Clauder personal would have close con- tact as a counselor women, with adult some of whom would be vulnerable because of the emo- severe they tional difficulties were experiencing as of part hospitalization. their

¶ summary judgment, 56. On a motion for a court by pleaded plaintiff takes as true all facts the and all reasonably inferences derived from those facts. Voss v. City Middleton, 162 2d 737, 747, Wis. 470 N.W.2d of (1991). proof Here, 625 the affidavits and other must be light plaintiff. viewed in the most favorable the Style Shop, Hagen Agency, Lisa's v. Inc. Ins. 181 Wis. (1994). Any 565, 569, 2d 511 N.W.2d 849 doubt as to genuine the existence of a issue of material fact must

707 moving party, against here the Diocese. County, the be resolved Complexes, Energy 152 Wis. Inc. v. Eau Claire (1989). incident wit- The 453, 462, 2d 449 N.W.2d majority by may asserts, the been, as Hebl have nessed relationship" adults. between "a sexual consensual straddling considering of on T.E. However, Clauder's bloody ripped on blouse, and the bite floor, the the wrist, infer that this it is also reasonable to Clauder's sexually I the behavior. conclude that was assaultive together facts, from inference these reasonable experts, support plaintiffs the the affidavits of the genuine of material fact. of a issue existence majority the the use of entire The confuses 57. hyperbole. It to acknowl- the declines record with use of edge excerpts from the which are and inferences record conclusion, and the of labels use inconsistent with its hyperbolic excerpts exces- such and inferences summary judgment stage it I that at sive. submit required, it we review excessive, indeed that is not excerpts depositions including of record, the entire may give rise to alternative affidavits which inferences. Curiously, majority the to acknowl- refuses testimony supports

edge part the of which that Hebl's sexually assaultive reasonable alternative inference majority emphasizes example, For behavior.2 signs, he "saw no visual none Hebl's statement behavior, sexually disputing the inference of assaultive long "relatively T.E. majority notes that Clauder and had relationship," and that two attended social and consensual traveled, op. at am events, together. Majority 703.1 and dined have a determination of not what relevance these facts sure knew or should inference exists Hebl whether reasonable sexually conduct Clauder on have assaultive known together times good evening question. General evidence whatsoever of any sexual attack or intimacy behav- ior, none whatsoever." Majority at 703 op. (emphasis omitted). Yet, the majority attaches no significance to on very material next page Hebl's deposition: Q: Now, though you even didn't accuse of any him sexual [T.E.], involvement with was that a thought your that was in mind as a possibility? Oh, yeah,

A: I think with the circumstances under which this happened, there could be possibil- ity, you but, know you gee, know I never, would him never accuse of it....

Q: understand, I only but the main point I'm trying to talk you about now is whether remember when happened, having thought your mind of something whether sexual had been going on between those two. I thought my mind,

A: What you know, I said so many things fast deny so that I won't that I could said, you know, have to him in the course of my conversation, you know, "She could turn this whole thing you rape," around and accuse or something like that.... 59. Elsewhere in Hebl's deposition appears the

following exchange, which the majority declines acknowledge:

Q: isn't, And at hypothetical least realm of possibilities, possibilities another of the is that he may have attacked her?

A: Iwhy That's any didn't want to make judg- ments toas who was at fault I here. was not pointing the finger her or him. specific negate

does not sexually incident of assaultive behavior. possible it is

Q: you accepting equally that So are him? as it that she attacked attacked her that he certainly possibility. not out that A: throw I would him of. myself I accuse nothing that would It's Q: it is possibility? But anything. I did not I not accuse her of

A: Sure. did simply them just I wanted anything. him of accuse her out. and separated Hebl record, of the yet another part 60.

¶ statement: following makes the him, saying accusing to No, I don't remember me looking you're byat anything, if that's what him of mind, maybe. my thought enter into saying did the have, It it could give you. the best I can could That's and we people, I we're reasonable suppose not have. but, possibilities be the say this could one would know, just . Let me add to you amongst many. . . say turn this around and she that, we could something on to him or him, or she came attacked Now, that's that, defending and himself. like he was side of the coin.... the other added.)

(Emphasis muster from The is unable majority 61. that Hebl the reasonable inference Hebl's statements incident he wit- have known that the knew or should sexually T.E. was Clauder and nessed between Yet, "hyper- from the realm in nature. far assaultive that testimony shows bole," deposition own Hebl's inference. I do could draw such an people reasonable made statements elsewhere other deny not Hebl odds with those that are apparently in his deposition However, assumes majority I excerpted. have Hebl's to credit some of state- by choosing role jury's I discarding others. conclude while ments arriving genu- at its determination that there no exists majority ine issue of material fact, declines to acknowledge thereby in the record, adverse facts usurps jury's function. ending inquiry finding Instead of its with a supporting

of an absence facts on L.L.N. the notice negligent supervision major- element of claim, her ity goes negligent supervision on find that L.L.N.'s claim is under barred the First Amendment because it require entanglement would excessive court in matters policies. of ecclesiastical law and internal church Majority op. by at 693-94. It is now well established judicial making, that, as a basic rule of decision a court should not reach a constitutional issue unless it is disposition essential to the the of case.3 perplexed. ¶ prompts majority I am What the unnecessarily reach to out tackle a constitutional agree I issue? with the concurrence that since this case summary judgment grounds, majority is decided on the reaching should refrain from the First Amendment Violating judicial issue. a fundamental rule of majority beyond purported restraint, reaches the unnecessarily, factual deficiencies of L.L.N.'s claim to incorrectly, and decide a constitutional issue. 3See, City Inc., e.g., Crystal Ridge, Franklin v. 180 Wis. 561, n.8, (1994); Rexnord,

2d 573 N.W.2d Co. v. Ziegler 509 730 Inc., 593, 612, 407 (1987); 139 Wis. 2d N.W.2d 873 S.B. v. Racine County, 409, 412, 406 (1987); 2d 138 Wis. N.W.2d Labor 408 Party Bd., 351, 354, Farm v. Elections Wis. 2d 344 117 N.W.2d (1984); Adamany, 552, 561, 177 Kollasch v. 104 Wis. 2d 313 (1981); Park, Inc., 451, N.W.2d 47 State v. State Fair 21 Wis. 2d (1963); State, 404, 407, 124 612 N.W.2d v. 2 Wis. 2d Witek (1957); Co., 384, 390, 86 N.W.2d 442 Smith v. Wis. Journal 271 (1955); Frear, 73 N.W.2d 429 State ex 138 rel. Rosenhein v. Wis. (1909). 173, 176, 119 N.W. precluded the First is 64. L.L.N.'s claim majority, according to the it can-

Amendment, because constitutionally without two not be resolved impermissible inquiries. judicial First, in order to the Diocese had constructive knowl- determine that edge relationship through of Clauder's sexual Hebl required T.E., be to consider with "a court would Majority op. practices." policies, law, at 694. church required to consider and Second, "a court would be celibacy interpret in order to determine the vow of negligently supervised Diocese Clauder." whether the majority grounds of its First The errs on both Id. ruling. portion majority's of the hold- That Amendment celibacy easily dealing ing most vow of is disposed of, I it first.4 and deal with majority knowledge 65. The concludes celibacy possibly clergyman's of a vow cannot breach clergyman give religious organization is notice sexually disposed to harmful or deviant behavior. op. agree; Majority I of his at 701. Clauder's breach legal significance. celibacy proves nothing of vow alone majority for It therefore inconsistent use issue, considering I of the First Amendment purposes For summary judgment, given, a as I must in a motion for take as necessary negligent support existence facts to L.L.N.'s the 1) Thus, following: Clauder was supervision claim. I assume the 2) times; at all relevant Clauder employee an of the Diocese T.E., sexually later engaged in harmful behavior toward sexually hospital chaplain exploit to position used his 3) L.L.N.; Clauder sexu knew or should have known that Hebl 4) Diocese, T.E.; employee was the ally harmed and Hebl an thereby imputable to These knowledge was the Diocese. and his absence, no in their there is facts must be assumed because claim, no negligent supervision and therefore First Amendment defense.

"necessity" inquiry celibacy of an into as a basis for barring negligent supervision the claim on First grounds. Amendment Id. 694-96. Because the celi- bacy negligent clergy supervision vow is irrelevant to a simply "required claim, it cannot be that L.L.N.'s claim court] interpret celibacy to consider and the vow negligently order to determine whether the Diocese supervised Clauder." Id. at 694.

¶ 66. It is axiomatic that a claim does not "require" consideration of fact which fails to aid in proving proof disloyalty the claim. Because of Clauder's celibacy nothing negligent to his vow of adds to L.L.N.'s supervision claim, a has court no to occasion consider interpret the vow. The First Amendment is therefore implicated. not majority asserting 67. The is incorrect in negligent supervision against

L.L.N.'s claim the Dio- premised solely cese is celibacy on Clauder's breach of his vow of Majority op. T.E.

with at 696 n.20. To the contrary, plaintiffs complaint only gen- makes duty eral assertion that the Diocese breached its "supervise priests respect and oversee all to sex- improprieties." against ual None of L.L.N.'s claims "celibacy." Diocese even word mentions the majority erroneously 68. The also states that asserting this dissent is alone in that the facts of this give case rise to an inference "that Clauder was engaged 'sexually assaultive behavior' toward T.E." Majority op. at 703. an Such assertion is subsumed allegation impropriety."5 within L.L.N.'s of "sexual The plaintiffs expert affidavits ofthe also refer witnesses majority The incorrectly following relies on exchange argument at oral proposition for the that there nois reasonable engaged sexually inference that Clauder conduct assaultive toward T.E.: propen- of Clauder's Diocese's constructive notice inappropriate

sity engage behavior. sexual questioning that under Hebl conceded Furthermore, sexually Clauder was one rea- assaultive behavior the T.E. drawn from inference that could be sonable incident. negli- majority, According to the L.L.N.'s 69. supervision

gent also an unconstitutional claim creates relationship requirement a court ascertain the that Diocese, the Dio- and the Hebl and Clauder between The nature of Clauder's cese, and and Hebl. Clauder is because the Diocese relevant connection with supervision negligent claim fails L.L.N.'s relationship employer-employee between of a absence Knitting Mills, Midwest and the Diocese. See Clauder (7th 1295, States, 950 F.2d Cir. United Inc. v. 1991) liability negligent supervision (describing of [employ- [employers] for of "servants" "masters" acts ees]). relationship Hebl and the Diocese is The between impute critical, must be L.L.N. able also because sexually exploi- knowledge Clauder's Hebl's asserted any of sexual in this "Is there evidence assault Justice Geske: case?" (L.L.N.'s case, attorney): this there was "Not in but Mr. McFarland certainly physical contact with T.E." some from "Not in Majority op. phrase, at n. 23. It is unclear case," stating Attorney was that there whether McFarland sexually conduct toward L.L.N. is no evidence of assaultive sexually alone, no assaultive conduct there is evidence of interpretation Only or L.L.N. the latter toward either T.E. I provide majority's for the ultimate conclusion. support would unlikely Attorney that it McFarland abandoned submit argument legal theory assertion subsumed L.L.N.'s in oral pursued vigorously deposition in the impropriety," "sexual Hebl, supported by supra in the record. 709- facts See only tive tendencies to the Diocese. This can be done if agency relationship an exists between Hebl and the Diocese. See Ivers & Pond Piano Co. v. Peckham, 29 (1966). 364, Wis. 2d 369, 139 N.W.2d 57 Contrary majority's 70. to the conclusion, the may charged Diocese be with constructive notice through regardless supervised Hebl of whether he knowledge imputed Clauder. Hebl's will be to the Dio- long knowledge cese so as Hebl obtained the in the employment course of scope his bis and within the authority. See Ivers & Pond Co., Piano 29 Wis. 2d at (1973). Agency 369; § 3 majority C.J.S. The does dispute placed not that the Diocese Hebl and vested authority him with the to maintain order at St. Ber- parish. authority nard's Hebl's at St. Bernard's is deposition testimony, demonstrated in his own policy which prevented he stated that it was his nonfamily staying priests' members from rooms, and priest it policy. was he who informed each of the There acting is no assertion that Hebl was outside of his authority investigated cry help when he for and discovered T.E. in Clauder's room. Consideration of way requires judg- these facts in no a court to stand in policy practice. ment of church Religious organizations, any like non- entity, only through human agents can "act" their and employees. Accordingly, respondeat superior negli- gent supervision predicated claims, which are on an employer-employee relationship, perhaps only are imposing liability means of tort on a church or similar permitted institution. If courts were not to determine legal relationship religious organizations between religious organizations and their clerics, would be effectively liability. immunized from tort relig

¶ 72. The First Amendment does not imbue immunity organizations with blanket from tort ious liability. Colorado, 863 P.2d See Moses v. Diocese of 1993). (Colo. apply A "neutral 310, 314 court is free to principles" religious organizations law to with of state implicating out the First Amendment. See Jones v. (1979) ("[t]he neutral-princi 443 U.S. Wolf, ples approach cannot be said to 'inhibit' the free religion, any more than do other neutral exercise provisions governing of state law the manner in which property, employees, purchase churches own hire or determining goods").6 employer- whether an relationship religious employee exists a insti between implicate clerics, and its a court does not First tution long question so as the Amendment considerations "determining may questions be decided without of policies." church Archdiocese Mil law and Pritzlaff v. of (1995). waukee, 302, 328, 194 Wis. 2d 533 N.W.2d 780 negligent ¶ 73. While announced that Pritzlaff supervision in the claims would be barred overwhelm- ing majority cases, of the court did not create an across- proscription Critically, negli- on such the-board gent supervision claims. precluded only they

claims are when 6 Aye, City Babalu Inc. v. See also Church Lukumi of (1993) Hialeah, 520, (stating 531 that "a law 508 U.S. that is general applicability justified by neutral and of not need be compelling governmental if has interest even the law the inci burdening particular religious practice"); dental effect of Div,, Smith, Oregon Employment Dep't Human Resources v. (1990) 872, (noting 878-79 that the United States U.S. Supreme religious Court has "never held that an individual's compliance beliefs excuse him from with an otherwise valid law regulate. prohibiting conduct that the State is free to On the contrary, century more free record of than a of our exercise jurisprudence proposition"). contradicts that require inquiry policies would an into church and doc- trine. In that sense, is consistent with those Pritzlaff jurisdictions holding negligent supervision claims necessarily precluded are not on First Amendment grounds. e.g., See, Nutt v. Norwich Roman Catholic (D. Supp. 1995); Diocese, 921 F. Conn. Kenneth R. v. Brooklyn, Roman Catholic Diocese 654 N.Y.S.2d 791 (N.Y. App. 1997); Div. Moses, 863 P.2d 310. prevent 74. The First Amendment does not determining court agency from whether an employer-employee relationship relig- exists between a organization inquiry ious and its clerics. Such an does not focus on the commission of an act which is "rooted religious belief." Wisconsin v. Yoder, 406 U.S. (1972). question 215-16 The also does not embroil the judiciary dispute in a church's internal over matters of policy procedure. ecclesiastical See v. St. Kedroff (1952); Nicholas Cathedral, 344 U.S. 94 Serbian E. (1976). Milivojevich, Orthodox Diocese v. 426 U.S. 696 agree appeals I with the court of relationship ascertain the nature of the between Clauder and the Diocese, and between Hebl and the only apply Diocese, the circuit court need the neutral agency rules of to the Diocese in the same manner as it entity. would to a secular The court would not be required disputed religious to resolve issues of doctrine practice. I inquiry therefore conclude that such an is permissible under the First Amendment. majority's

¶ reasoning 76. The the First relationship Amendment bars consideration of the religious organization clergy between a and its has implications beyond dealing far cases with sexual clergy parishioners. intercourse between and adult If relationship courts cannot take notice of the between a respondeat superior church neg- cleric, and a then and ligent supervision can never maintained claims be regardless prior against religious organization, a degree or the of sexual deviation.7 notice example, suppose that a church knows 77. For certainty priests is inclined to sexu- with that one of its places priest ally in The church the molest children. regular, unsupervised priest has situation where the priest molests a child. Under access to children. The majority's negligent supervision claim is view, the precluded requires the claim a court ascer-

because employment relationship an exists tain whether priest the and the church. between Why a diocesan decision to let a should pedophile unsupervised work with children known enjoy protection? be, Is the answer to ecclesiastical suggests, strong [a] majority opinion that "due to the may redemption, bishop determine that a belief sufficiently reprimanded wayward priest can be through counseling "mercy prayer," and that and forgiveness . are interwoven in the institution's . . practices"? Majority op. norms and at 690. This reason- ing, the which stretches the fabric of First Amendment majority attempt explain, The does not because it can not, why inquiry employment an into Clauder and Hebl's relationship constitutionally the Diocese is barred in this case, "may constitutionally permissible in but other cases. be" Majority inquiry An into the existence of a op. at 694 n. 18. relationship independent employment precedes cleric's and is conduct; inquiry alleged nature tortious the an into the analysis every case. There is therefore no basis for same might majority's statement that its decision allow a court in employment a future case to determine the nature of a cleric's truth, relationship religious organization. major with a ity's reasoning operates every instance as an absolute bar to inquiry employment an into the existence of a cleric's relationship. provide protection blanket to the Diocese in all cases,

is erroneous. If 79. after this case the Diocese were to rein- hospital chaplain,

state Clauder as a and Clauder were position gratification to use that patients, to obtain sexual from accept I cannot the First Amendment negligent supervision against would act to bar a claim "mercy forgiveness" religious the Diocese. The of a organization sexually exploitive toward a known cler- gyman organization does not excuse the from responding damages posi- when the cleric uses his procure entity enjoys tion to his next victim. No secular immunity liability. such a employer from broad tort If a secular supervise fails to a servant with known dan- gerous employer liability inclinations, that faces when position employer the servant uses his or her with the relig- to commit a tortious act. So should it be when a organization supervise ious fails to a cleric known to sexually exploitive commit harmful or acts. genuine conclusion, there issue of

material fact as to whether the Diocese should have placement hospital chaplain known that Clauder's as a likely subject party would a third to an unreasonable risk of harm. The Diocese is therefore not entitled to summary judgment negligent supervision on L.L.N.'s disagree majority's Furthermore, claim. I with the con- negligent supervision clusion that L.L.N.'s claim is barred First Amendment considerations exces- entanglement religious sive court affairs. Accordingly, respectfully I dissent. that Chief Justice I am authorized to state joins

Shirley opinion. S. Abrahamson

Case Details

Case Name: L.L.N. v. Clauder

Court Name: Wisconsin Supreme Court

Date Published: May 23, 1997

Citation: 563 N.W.2d 434

Docket Number: 95-2084

Court Abbreviation: Wis.