Lead Opinion
In this defamation case, Stephen E. Purdum sued his former wife, Katherine C. Harcsar, for allegedly libelous statements she made to the Archdiocese of Kansas City in Kansas. These alleged defamatory statements were made to the Archdiocesan Tribunal when Harcsar sought to annul her sacramental marriage to Purdum. Harcsar moved to dismiss Purdum’s defamation action under K.S.A. 60-212(b)(6) for failure to state a claim upon which relief can be granted. She maintained that because the statements were made in foe context of the annulment action, they were absolutely privileged as part of a “quasi-judicial proceeding.” Before ruling on Harcsar’s motion to dismiss, the trial court, with the parties’ consent, solicited the Archdiocese for input as amicus curiae.
The Archdiocese submitted an amicus brief in favor of dismissal, although on somewhat different grounds. It argued that the defamation action should be dismissed under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction because it impermissibly interfered with the free exercise of religion under the First Amendment to the United States Constitution, that the statements were absolutely privileged, and that the suit ran afoul of the church autonomy doctrine. The Archdiocese further argued that church autonomy doctrine prevented the courts from reviewing or interfering with church affairs that involve faith, doctrine, governance, and policy.
When foe trial court denied Harcsar’s motion to dismiss, foe Archdiocese moved to intervene and to become a party in foe action. In its motion to intervene, the Archdiocese argued that foe church autonomy doctrine prevented foe trial court from exercising subject matter jurisdiction over the action. After reviewing foe briefs and hearing arguments, the trial court again rejected the Archdiocese’s argument based on the church autonomy doctrine and also denied its motion to intervene. In rejecting the church autonomy doctrine, the trial court recognized that no claims were made
On appeal, Purdum argues that the trial court erred by holding that the statements made in Plarcsar’s petition for annulment were absolutely privileged. Thus, he asserts that the trial court erred by finding that it lacked subject matter jurisdiction as a result of absolute privilege. This court agrees. Nevertheless, when a trial court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins v. City of Wichita,
Here, Harcsar’s alleged defamatory statements are inextricably part of the Archdiocesan Tribunal. Moreover, Purdum conceded that the only defamatory publication allegedly made by Harcsar was made to the Archdiocesan Tribunal, within its ecclesiastical procedure. Harcsar raised defenses of consent and qualified privilege to the allegedly defamatory statements she made to the Archdiocesan Tribunal. Purdum’s suit thus would require the civil courts to interpret canon law concerning Plarcsar’s consent defense. Harcsar’s consent defense and her qualified privilege defense would excessively entangle the civil courts in a matter that the First Amendment to the United States Constitution forbids. Because tire Establishment Clause of the First Amendment precludes jurisdiction over the subject matter of Purdum’s defamation action, this court determines that the trial court properly concluded drat the First Amendment precluded its exercise of subject matter' jurisdiction in this defamation action.
Facts
As stated earlier, the trial court dismissed Purdum’s defamation action against Harcsar for lack of subject matter jurisdiction under K.S.A. 60-212(b)(1). The parties did not dispute the material facts upon which the trial court relied in dismissing the case, nor do they dispute those factual assertions for purposes of this appeal.
Purdum and Harcsar were married on April 25, 1993, in New Jersey. Before marrying, Purdum and Harcsar completed and signed the prenuptial inquiry prescribed by the Catholic Church. Moreover, in this inquiry, they both stated that they understood and consented to the obligations for a Catholic marriage. Under paragraph “44” of Exhibit C-l, it addressed Purdum’s and Harc-sar’s consent to the authority of the Catholic Church over their marriage:
“Both spouses assent to the authority of the Catholic Church over their marriage by their free request to be married within the Catholic Church. This assent endures if one or both of the spouses later asks the Church to declare the invalidity of tire same marriage. In other words, if the marriage is sacramentally celebrated within the Catholic Church, the Catholic Church has jurisdiction over not only the preparation for and liturgical celebration of the sacrament of marriage, it also has jurisdiction over the judicial process to discern whether there were defects in die marriage that warrant an ecclesiastical declaration of invalidity. Nonetheless, participation in the tribunal process is voluntary and uncoerced.”
The record indicates that “ when [a] non-Catholic spouse voluntarily enters into the process of spiritual and religious preparation for sacramental marriage, that person freely submits to the jurisdiction of the Church as regards the celebration and oversight of the sacrament of marriage.’ ” He or she is told about the jurisdiction of the church. For example, under Purdum’s prenuptial inquiry, he was asked the following question: “Are you giving your consent to this marriage
Purdum filed for divorce in Johnson County in late 2001, and the divorce was granted about 6 years later. Harcsar apparently wished to remarry in a Catholic ceremony. The Catholic Church will allow a later marriage when an annulment is granted for any previous marriage. Thus, before Harcsar could remarry in a Catholic ceremony, she needed to obtain an annulment of her marriage to Purdum.
In February 2009, Harcsar filed a petition for annulment with the Archdiocesan Tribunal. As provided in the mies for the Tribunal, the Archdiocese sent a copy of the petition to Purdum and informed him that he could participate in the annulment proceeding if he wanted. Persons affiliated with the Archdiocese read the petition in connection with the annulment process. The petition and the process are confidential. Only church officials directly involved in that process would be privy to the information contained in the petition.
In his civil suit, Purdum alleged that the statements Harcsar made about him in her annulment petition were false and defam-atoiy. His amended petition described briefly the nature of the alleged defamation as an assertion that he had been “diagnosed as bipolar.” The suit contends that Harcsar knew those statements to be false. The amended petition made no claim against the Archdiocese or any of its employees, agents, or members of tire Tribunal.
With the consent of Purdum and Harcsar, the trial court invited the Archdiocese to appear in the case as amicus curiae because tire dispute arose out of an annulment of a sacramental marriage. In tlrat capacity, the Archdiocese filed a brief urging dismissal of the suit based on privilege and church autonomy. The Archdiocese tiren moved to intervene as a party as a matter of right under K. S. A. 60-224(a)(2). As an exhibit to the request to intervene, the Archdiocese submitted a motion to dismiss Purdum’s suit under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction. Harcsar endorsed and incorporated the arguments made in tire Archdiocese’s motion to dismiss as her own arguments. The motion to dismiss focused on various theories grouped under the church autonomy doctrine. The trial court ultimately denied the Archdiocese’s request to intervene but ruled on the substantive arguments that the Archdiocese had raised for dismissing Purdum’s suit. In its memorandum decision, the trial court ruled that church autonomy doctrine did not warrant dismissal of the defamation action. But the trial court ruled that the Free Exercise Clause of the First Amendment to the United States Constitution afforded Harcsar an absolute privilege against liability for her statements to the Archdiocesan Tribunal.
Did the Trial Court Err in Dismissing Purdum’s Defamation Claim for Lack of Subject Matter Jurisdiction Based on an Absolute Privilege under the First Amendment to the United States Constitution?
Purdum maintains that the trial court’s holding that Harcsar’s alleged defamatory statements were absolutely privileged under the First Amendment was unjustified. Moreover, he contends that the trial court compounded this error in holding that it lacked subject matter jurisdiction as a result of the absolute privilege. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Kansas Medical Mut. Ins. Co. v. Svaty,
On the other hand, Harcsar, endorsing and incorporating the briefs and exhibits filed by the Archdiocese as her own briefs and exhibits, contends that because an absolute privilege existed under the Free Exercise Clause of the First Amendment and that because Purdum’s defamation action would entangle the civil courts in an ecclesiastical subject matter contrary to the church autonomy doctrine, this divested the trial court of subject matter jurisdiction.
Religious Guaranty under the First Amendment
The religious guaranty under the First Amendment is divided into two parts: (1) the Establishment Clause and (2) the Free Exercise Clause. These clauses draw a line between church and state in two important ways. First, the Establishment Clause states: “Congress shall make no law respecting an establishment of religion.” Based on the language of this clause, Congress remains free to legislate on matters about religion (for example, the excusing of religious pacifists from military service), but Congress cannot enact any legislation advancing a matter “respecting an establishment of religion.”
Yet, tire reach of the Establishment Clause is not limited to forbidding an established church. This Clause imposes a requirement of official neutrality in religious disputes, which the United States Supreme Court has characterized as one of “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Walz v. Tax Commission of New York,
Second, the Free Exercise Clause “withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion”; it protects the right of “religious liberty in tire individual” to practice one’s faith unrestricted by civil authority. School Dist. v. Schempp,
The First Amendment religious clauses are applicable to the states by virtue of die Fourteenth Amendment to the United States Constitution. Moreover, the First Amendment applies to judicial power. Kreshik v. St. Nicholas Cathedral,
The threshold inquiry here is whether the underlying dispute is a secular one, capable of review by a civil court, or an ecclesiastical one about “discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” Serbian Orthodox Diocese v. Milivojevich,
Free Exercise Clause
In ruling that defendant’s alleged defamatory statement was protected under “the defendant’s First Amendment right to Free Exercise of her religion,” the trial court grounded its decision upon the holding in Cimijotti v. Paulsen,
“To allow slander actions to be based solely upon statements made to the Church before its recognized officials and under its disciplines and regulations would be a violation of the First Amendment. The law withdraws from the State any exertion of restraint on free exercise of religion. The freedom of speech does not protect one against slander, yet a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. . . . [T]he person .must not be prohibited, by fear of court action either civil or criminal against his person or property, from actually malting the communication.” (Emphasis added.)230 F. Supp. at 41 .
The Cimijotti court then held that “based upon the common law . . . and the First Amendment,” the defendants’ statements to
Here, Harcsar claims an absolute privilege against liability for her statements to the Archdiocesan Tribunal under the First Amendment. In Cantwell v. Connecticut,
Here, Harcsar’s alleged defamatory statements—that Purdum had been “diagnosed as bipolar”—are not of the land normally associated with someone’s religious beliefs and opinions. Harcsar’s statements do not express an inherently religious belief or religious purpose. Thus, these statements should not enjoy an absolute privilege against liability under the Free Exercise Clause of the First Amendment. Although the trial court’s reliance on Cimijotti s absolute privilege ruling may have been misplaced, a trial court’s decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins,
Harcsar, in her responsive pleadings, advances another absolute privilege argument. She maintains that an absolute privilege existed for her alleged defamatory statements on tire grounds drat her statements were made in a “quasi-judicial proceeding.” Privilege, absolute or qualified, is a complete defense against liability for libel. Prosser, Law of Torts § 114, at 776 (4th ed. 1971). The question of whether a publication is privileged is a question of law to be determined by dre court. Turner v. Halliburton Co.,
Absolute privilege concerning defamatory publications has been “confined to a few situations where there is an obvious policy in favor of permitting complete freedom of expression, without inquiry as to the defendant’s motives.” Prosser, Law of Torts § 114, at 777. For example, in Kansas, an absolute privilege has been limited to those individuals “who serve in a legislative, executive or judicial capacity.” Turner,
This court explained the purpose of absolute privilege in Sampson v. Rumsey,
“Absolute privilege is founded on public policy and provides immunity for those engaged in the public service and in theenactment and administration of law. It is not intended so much for the protection of those engaged in that service as it is for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for recovery of damages.”
See Redgate v. Roush,
Returning to Harcsar’s “quasi-judicial proceeding” argument, this court notes that Black’s Law Dictionary 849 (6th ed. 1990) defines a “judicial proceeding” as follows: “Any proceeding wherein judicial action is invoked and taken .... Any proceeding to obtain such remedy as the law allows .... A proceeding in a legally constituted court.” These definitions all describe secular, non-ecclesiastical, proceedings. Because Harcsar’s “quasi-judicial proceeding” occurred in an ecclesiastical setting and because the occasions for absolute privilege are limited by court precedent, this court determines that Harcsar’s absolute privilege argument fails.
Harcsar and the Archdiocese also advance several other arguments for the dismissal of this action. This court determines that their argument under the Establishment Clause requires the dismissal of this action. The judicial resolution of this defamation action would inexorably entangle the civil courts in an attempt to interpret canon law in violation of the First Amendment of the United States Constitution.
Establishment Clause
There are three main concerns against which the Establishment Clause sought to protect: “sponsorship, financial support, and active involvement of tire sovereign in religious activity.” Walz,
In Lemon, the Court determined that excessive government entanglement with church-related schools would occur. This entanglement was found to inhere in state laws providing for payment of part of the salaries of teachers in parochial schools. The laws were held invalid even though their operation was limited to teachers of secular subjects. The Court reasoned that to ensure enforcement of the limitation, there would have to be excessive entanglement arising from the state’s power of continuing surveillance to determine if the limitation was obeyed.
No Excessive Government Entanglement with Religion
An excessive entanglement in violation of the Establishment Clause can occur when states or civil courts are required to interpret and evaluate church doctrine. If civil courts can resolve the issues by “neutral principles of law” by applying rules or standards without inquiiy into religious doctrine, there is no entanglement problem. Jones v. Wolf,
To determine whether the Establishment Clause prohibits die civil courts from exercising jurisdiction over this matter, this court, must consider the specific elements of Purdum’s claim. In other words, this court must determine the nature and extent of the doctrinal relevance involved in the dispute.
Purdum bases his suit on a letter that Harcsar wrote to the Archdiocese asking for an annulment of her marriage to Purdum. Paragraph 9 of Purdum’s first amended petition states that the letter “contained several false and damaging statements of fact about Plaintiff s behavior and psychological state, including but not limited to an assertion that Plaintiff was diagnosed as bipolar.’ ”
Essentially, Purdum’s contentions allege that the alleged defamatory statements made by Harcsar can be “evaluated solely by the application of neutral principles of law and do not implicate matters of religious doctrine and practice.” This court disagrees. For example, Harcsar claims an absolute privilege, which this court briefly discussed earlier, and, in the alternative, a qualified privilege to the alleged defamatory communication. In addition, Harcsar has raised, in her responsive pleadings, a defense of consent to her allegedly defamatory statements. The very nature of Harcsar’s defenses and Purdum’s defamation action will entangle the civil courts in the details of tire administration and procedures of the Archdiocese’s annulment proceedings. To illustrate, Purdum, at the trial court level, sought discovery from the Archdiocese for the following documents:
“1. Any and all correspondence and documents exchanged by you or the Archdiocese of Kansas City in Kansas (‘Archdiocese’) and Stephen Purdum in connection with his marriage case (the ‘Marriage Case’).
“2. Any and all correspondence and documents exchanged by you or the Archdiocese and Katy Purdum in connection with the Marriage Case.
“3. Any and all correspondence and documents exchanged by you or the Archdiocese and any third party or witness in connection with the Marriage Case.
“4. The file created by you or the Archdiocese in connection with the Marriage Case.”
This requested discovery alone will entangle the civil courts in the administration of the Archdiocese’s annulment proceedings. Moreover, there is no way for Purdum to prove his defamation action against Harcsar without excessive entanglement between the civil courts and the Archdiocese. For instance, Purdum conceded to the trial court that the only defamatory publication allegedly made by Harcsar was made to the Archdiocesan Tribunal:
“TPIE COURT: His claim is that he received this publication or that it was given to the church?
“[PLAINTIFF’S ATTORNEY]: Well, he received the publication, and it was published to the Archdiocese.
“TPIE COURT: Not the parishioners, but to the hierarchy?
“[PLAINTIFF’S ATTORNEY]: Right. And I believe that there may have been witnesses to the Archdiocese proceeding. But within the Archdiocese proceeding, not to the parishioners at large.
“THE COURT: Which he knows about because he received his notice as part of the church process which he at least impliedly knows exists because he signs on to the process, submits to the marriage in the church?
“[PLAINTIFF’S ATTORNEY]: It was a Catholic marriage.
“TPIE COURT: So his main complaint arises from him being notified. Otherwise he would have never known anything about the process.
“[PLAINTIFF’S ATTORNEY]: Well, that was how he received notice, but the publication at issue wouldn’t be the publication to him.”
Moreover, Purdum’s first amended petition makes no allegation that Harcsar repeated
As stated previously, Harcsar’s petition for annulment is inextricably part of the Archdiocesan Tribunal. Purdum’s suit would require discovery and depositions of employees of tire Archdiocese and would require the civil courts to interpret canon law concerning Harcsar’s consent defense. For instance, the consent to submit to the discipline or authority of the church, sect, or congregation is one of contract; therefore, it is between the person who has given his or her consent and the religious body. Rosicrucian Fellow. v. Rosicrucian Etc. Ch.,
There is no doubt that the First Amendment offers no protection to religious worshipers who make slanderous or libelous statements outside ecclesiastical tribunals, but that is not the case here. Harc-sar asked for an annulment in a church forum as part of a church-approved, church-defined, and church-controlled process where the church would determine the validity of the church’s marriage sacrament. There is no evidence that she took any action against Purdum outside tire Archdiocesan Tribunal. Purdum’s defamation action involves an ecclesiastical subject matter, and adjudication of it would entangle the civil courts in a church matter.
The First Amendment to the United States Constitution gives to churches freedom in managing their affairs in accordance with their own internal law and procedure, free from civil courts and governmental intervention:
“The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for tire decision of controverted questions of faith within the association, and for the ecclesiastical government of all tire individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.” Watson v. Jones,80 U.S. (13 Wall.) 679 , 728-29,20 L. Ed. 666 (1871).
Although Watson was based on federal common law, the United States Supreme Court has expressly applied Watson to the first Amendment. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710,
To avoid paying damages to Purdum, Harcsar would have to prove in the civil courts that the statements she made in her petition for annulment were true. Moreover, if Harcsar relies on the defense of qualified privilege, she has the initial burden of establishing a prima facie case of qualified privilege. “A qualified privileged publication is one made on occasion which furnishes a prima facie legal excuse for making it unless additional facts are shown which alter the character of the publication.” Munsell v. Ideal Food Stores,
How can the civil courts—and perhaps a jury—determine if the statements Harcsar made in her petition for annulment were “made in good faith, without malice, and with reasonable or probable grounds for believing them to be true” without entangling itself in the religious sincerity and conscience of Harcsar? The resolution of these factual disputes would require the courts to inquire into religious practices. Moreover, how can the civil courts—and perhaps a
Because this court has affirmed the trial court’s dismissal of this action, it is not necessary for this court to address the Archdiocese’s motion to intervene and Church autonomy doctrine issues.
Affirmed.
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Concurrence Opinion
concurring: I concur in-the majority opinion but write separately to explain why I believe tire church autonomy doctrine—also known as ecclesiastical abstention—is applicable in this case. Undoubtedly, this is a difficult question and I sincerely respect the opinions expressed by bodr of my colleagues. Nevertheless, I believe that under die unique facts presented in tíiis defamation case—which arises out of an annulment proceeding filed in the Roman Catholic Church—we must decline to exercise subject matter jurisdiction out of respect for church autonomy. To do otherwise would excessively entangle the court in matters of church doctrine and practice.
Standard of Review
The procedure used by the district court to dismiss this case for lack of subject matter jurisdiction was unusual. But I do not find the dismissal to be premature. Although Harscar filed a motion to dismiss, and the Archdiocese filed a proposed motion to dismiss, it appears that the district court did not rule on either of these motions. Rather, the district court ruled sua sponte—evidently pursuant to K.S.A. 60-212(b)(1)—that it lacked subject matter jurisdiction over the defamation claim. Specifically, the district court concluded that it would be inappropriate under the First Amendment to “require individuals to defend themselves in civil court for statements made during required religious proceedings, even if the statements are later determined to be true.”
“Subject matter jurisdiction is vested by statute or constitution and establishes the court’s authority to hear and decide a particular type of action.” Chelf v. State,
Although the issue has not been addressed in Kansas, several jurisdictions have held that the ecclesiastical abstention doctrine involves subject matter jurisdiction. See State v. Young,
Church Autonomy and Ecclesiastical Abstention
The First Amendment to the United States Constitution provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Similarly, Section 7 of tire Kansas Constitution Bill of Rights states, in part, that “[t]he right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted . . . .” All three branches of government are to protect these fundamental constitutional rights. See Kreshik v. St. Nicholas Cathedral,
Hierarchical religious organizations have the right “ To establish their own rules and regulations for internal discipline and government, and to create tribunals for adjudicating disputes over these matters.’ ” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,
As this court has recognized, “[t]he jurisdiction of civil courts to address matters involving church affairs is limited.” Church of God in Christ, Inc. v. Board of Trustees,
In some instances, it is clear that secular courts must yield subject matter jurisdiction to ecclesiastical tribunals. For example, secular courts do not have the authority to determine matters relating to the selection of ministers. See Hosanna-Tabor,
Application of Church Autonomy and Ecclesiastical Abstention
Certainly, a defamation claim is a civil cause of action that falls witiiin the general jurisdiction of state courts. But the allegation of defamation in this case arises entirely out of an ecclesiastical proceeding. Specifically, Harscar included the alleged defamatory statement in a pleading she filed with a tribunal of the Roman Catholic Church. Moreover, neither party disputes that the
Both Purdum and Harscar consented to the jurisdiction of the Roman Catholic Church regarding the validity of their sacramental marriage. In fact, Purdum’s counsel represented to the district court that “we don’t contest that [the parties] were married in a Catholic marriage, and we certainly don’t contest the jurisdiction of the Catholic Church to determine the annulment.” Nevertheless, Purdum went on to argue that because he is not a member of the Roman Catholic Church] he has the right to bring his “defamation claim in Kansas state court.” But this does not change the fact that he has agreed to the church’s jurisdiction over the sacramental side of his marriage to Harscar—he consented to the church’s authority to determine his marital status within the church. Because Purdum consented to the very proceeding in which the defamation claim arose, I believe the issue of consent is relevant to our examination of the issue of church autonomy and ecclesiastical abstention. This is true regardless of its possible relevance as a separate defense to the defamation claim.
Purdum has agreed that the affidavits attached to the motions filed in the district court by the Archdiocese “are admissible evidence for the Court to consider [in resolving] the issue of subject matter jurisdiction.” These affidavits, and the accompanying documents, confirm that an annulment in the Roman Catholic Church deals only with the religious or spiritual side of the marriage. It has nothing to do with the legal or civil side of the marriage. If the Roman Catholic Church grants an annulment, it is simply a declaration drat the marriage is invalid in the eyes of the church. Such a declaration of invalidity, however, does not impact any civil obligations arising out of tire marriage. Unlike a divorce or similar action in civil or secular courts, an annulment looks at the marriage entirely from the perspective of church doctrine and canon law.
If a prior marriage does not end in the death of one of the spouses, a spouse must complete an annulment or similar procedure before entering a new marriage in the Roman Catholic Church or receiving its sacraments. The burden of proof in an ecclesiastical annulment proceeding rests on the petitioner, and he or she must present sufficient grounds to obtain a declaration of invalidity. In addition, notification to the respondent is an essential element of an annulment proceeding in order to give both parties the opportunity to participate in tire fact-finding process.
Indeed, a witness questionnaire sent to Purdum as part of the notice of the commencement of the ecclesiastical annulment proceeding stated: “The purpose of our investigation is to determine the status of the parties in the eyes of the Roman Catholic Church . . . .” Moreover, the petition filed by Purdum in this case does not allege that anyone other than the parties and the Roman Catholic Church saw the allegedly defamatoiy statement made by Harscar in the ecclesiastical annulment proceeding. Thus, the question in this case is whether secular courts should abstain from exercising subject matter jurisdiction over a defamation claim where the statement alleged to have been defamatory was made solely within the context of an ecclesiastical proceeding consented to by all parties.
Although defamation laws may be neutral, a secular court is not free to entangle itself in matters pending before an ecclesiastical tribunal simply because the court might resolve the issue without resorting to religious doctrine. For example, in Hosanna-Tabor, the employment disability law that was allegedly violated was neutral in that it generally applied to all employers—both ecclesiastical or secular. See Hosanna-Tabor,
While tire present case does not involve tire selection or dismissal of a minister, it involves a proceeding to determine the validity of a sacramental marriage within the Roman Catholic Church—a matter that is also strictly ecclesiastical. Regardless of whether the alleged defamatory statement was true or not, Harscar made it only to tire ecclesiastical tribunal. That tribunal, in turn, shared it with Purdum as a regular part of the Roman Catholic Church’s procedure in an action to determine the validity of a sacramental marriage.
In order for authorities within the Roman Catholic Church to perform their duties in an ecclesiastical annulment proceeding, I believe it is imperative that the parties be free to allege their version of the facts with candor and without fear of being sued in secular courts. See Cimijotti v. Paulsen,
In summary, the sole purpose of an ecclesiastical annulment proceeding is to determine the validity of a sacramental marriage within the Roman Catholic Church and it has no impact on the status of a civil marriage. To allow a claim to go forward based on an alleged defamatory statement made solely in die context of an ecclesiastical annulment proceeding would have a chilling effect on the ability of the Roman Catholic Church to investigate and determine the validity of such marriages within the church. Thus, because the alleged defamatory statement in this case arises completely within the context of a consented-to ecclesiastical proceeding, we must respect church autonomy by exercising ecclesiastical abstention.
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Dissenting Opinion
dissenting: Plaintiff Stephen E. Purdum sued Defendant Katherine C. Harcsar, his former wife, for defamation. The case has taken a detour into the legal ramifications of the Free Exercise Clause of the First Amendment, insulating religious beliefs and practices, because Harcsar made the allegedly libelous statement in a request to the Archdiocese of Kansas City in Kansas for an annulment of their marriage. The Archdiocese sought to intervene in tire Johnson County District Court proceedings and asked that the suit be dismissed. Without reaching the merits of tire defamation claim and before any discovery had been done, the district court ruled the Free Exercise Clause creates an absolute privilege or immunity for Harcsar s statement, borrowing one of the Archdiocese’s arguments. The district court erred in recognizing such a constitutional protection and dismissing Purdum’s suit.
The Archdiocese also urged the district court to dismiss the suit in keeping with the recognized constitutional principles of church autonomy that shield religious organizations, their officials, and their congregants from judicial review of disputes bound up with matters of faith, ecclesiastical doctrine, or the selection of spiritual leaders. The district court correctly declined to apply those principles in the manner the Archdiocese requested because the allegedly defamatoiy statement is secular in nature and Purdum does not challenge the Catholic Church’s authority to consider or grant the annulment.
That is how the case came to this court, presenting two substantive issues—the district court’s ill-conceived absolute privilege and the Archdiocese’s argument for broad application of church autonomy to bar Purdum’s suit simply because it has some general association with a religious proceeding.
Judge Green reaches out to affirm the district court based on consent—an issue that has never been briefed or argued by any of the parties on appeal or below. Judge Green posits that because Purdum consented to a sacramental marriage within the Catholic faith and, presumably, to its annulment, this suit cannot go forward. He suggests sorting out the scope of Purdum’s consent would im-permissibly entangle the courts in an issue of church doctrine, thereby violating the religion clauses. He also suggests consent would be a defense to a libel action under accepted principles of defamation law. Whatever the worth of those theories, neither Harcsar nor the Archdiocese has argued them to this point. And Purdum has never had a chance to respond to them. If this case were remanded, as it should be on the issues actually presented, the parties would be free to join and fully litigate consent in the district court. I decline to join in Judge Green’s rush to judgment.
Judge Bruns seems to combine consent with absolute privilege to conclude Purdum’s suit was properly dismissed and, thus, concurs in affirming the judgment below. His opinion, thus, rests on a yet-to-be-argued issue (consent) and a legally unfounded one (absolute privilege). I cannot join in that approach either.
In the balance of this dissent, I outline the factual and procedural history of the case. I then explain why the district court’s reliance on absolute privilege has no- constitutional foundation in religion clauses of the First Amendment and is, therefore, erroneous. Next, I address the argument tire Archdiocese actually has presented for dismissal based on the church autonomy doctrine and discuss how that position would substantially and impermissibly expand the doctrine. Finally, I elaborate on why the judgment of dismissal should not be affirmed based on the reasons my colleagues advance.
I do agree with Judge Bruns that the fundamental issue in this case—whether Harcsar has committed an actionable libel of Pur-dum—is a challenging one. The parties and the district court have never gotten to a host of intriguing questions of defamation law wholly unrelated to the religious character of the forum in which the statement was published. The circumstances of the publication, however, open up another set of exceptionally difficult questions dependent on the constitutional protections afforded religious beliefs and practices. Only a couple of those questions have been presented to us, and we cannot venture beyond them in fashioning our answers in this appeal. We mustn’t turn to defenses not yet presented and argued in our effort to meet the challenges of this case.
In sum, the case should be returned to the district court to travel the usual path of civil litigation to discovery, dispositive motions, and, if necessary, trial. On a fully developed factual record, Harcsar might prevail on consent, church autonomy, or some other defense whether on a renewed motion to dismiss, summaiy judgment, or at trial. Nothing I suggest would preclude those outcomes. But dismissing the case now cannot be legally justified.
Factual and Procedural History
The district court dismissed Purdum’s amended petition against Harcsar for lack of subject matter jurisdiction, as provided in K.S.A. 2012 Supp. 60-212(b)(1), based on its mistaken conclusion that an absolute privilege attached to Harcsar’s statement. The procedural posture of the case both in the district court and here is odd because of the presence of the Archdiocese—it appeared in the district court as an invited amicus curiae, but the district court denied its motion to
The district court dismissed tire case before any discovery had been done. The factual basis for its ruling was drawn, in part, from a motion the Archdiocese filed, with supporting affidavits, suggesting the lack of subject matter jurisdiction and, in part, from the amended petition. The parties did not dispute the material facts upon which the district couit relied in dismissing the case. Nor do they dispute those factual assertions for purposes of this appeal. I necessarily base my assessment of the legal issues on that limited record.
Purdum and Harcsar were married on April 25, 1993, in New Jersey. This case is captioned as Purdum v. Purdum, suggesting Harcsar took her ex-husband’s surname when they married. But the briefing uses tire surname Harcsar; all of us have done so too. Harcsar was and remains a devout Catholic. Purdum is Lutheran. Their marriage was performed according to the rituals of the Catholic Church and was considered sacramental. Purdum filed for divorce in Johnson County in late 2001, and the divorce was granted about 6 years later. Harcsar apparently wished to remarry in a Catholic ceremony. To do so, she needed to obtain an annulment of her marriage to Purdum from the Catholic Church. If granted, an annulment effectively invalidates a marriage so far as the Catholic Church is concerned.
In February 2009, Harcsar filed a petition for annulment with the Archdiocesan Tribunal for the Archdiocese of Kansas City in Kansas. As provided in the rules for the Tribunal, the Archdiocese sent a copy of the petition to Purdum and informed him that he could participate in the annulment proceeding if he so chose. Persons affiliated with the Archdiocese read the petition in connection with the annulment process. The petition and the process are to be confidential. Only church officials directly involved in that process should be privy to the information in the petition.
In his civil suit, Purdum alleged statements Harcsar made about him in the annulment petition to be false and defamatory. His amended petition described briefly the nature of the alleged defamation as an assertion that he had been “diagnosed as bipolar” and as otherwise referring to his mental health in some way. The suit contends Harcsar knew those statements to be false. The suit does not contend the statements were published or communicated outside of the annulment process. As described in the amended petition, the challenged statement concerned a purely secular matter and had nothing to do with Purdum’s piety or his religious beliefs or practices. Purdum sued only Harcsar on a theory of libel or defamation. The amended petition made no claim against the Archdiocese or any of its employees, agents, or members of the Tribunal. Nor did it seek to block or otherwise interfere with the annulment. Based on the representations of counsel at oral argument, I understand the annulment to have been granted.
At this juncture, the parties do not dispute the sufficiency of the amended petition in stating a claim for defamation. That is, Harcsar has yet to argue defenses grounded in defamation law. The district court did not rule on any defamation defenses, and nothing in appellate briefing touches on them. In her answer, Harcsar asserted consent as an affirmative defense. She has, thus, preserved the issue. But, as I indicated, the parties have not joined or argued consent in the district court or on appeal.
With the agreement of Purdum and Harcsar, the district court invited the Archdiocese to appear in tire case as amicus curiae because the dispute arose out of an annulment of a church sanctified marriage. The Archdiocese filed papers in that capacity urging dismissal of the suit based on privilege and church autonomy. The Archdiocese then moved to intervene as a party as a matter of right under K.S.A. 2012 Supp. 60-224(a)(2). As an exhibit to the request to intervene, the Archdiocese submitted a motion to dismiss Purdum’s suit for lack of subject matter jurisdiction focusing on the church autonomy doctrine.
Purdum timely filed a notice of appeal. On the same day, the Archdiocese filed its own notice of appeal challenging the district court’s denial of its motion to intervene and rejection of church autonomy as a basis for dismissing the suit. Harcsar joined in the appeal. The Archdiocese filed a lengthy brief with this court principally addressing what it perceived as the district court’s errors in rejecting church autonomy as an alternative ground for dismissal of the suit and in denying its motion to intervene. On appeal, Harc-sar filed a short brief joining in the Archdiocese’s arguments and advancing no independent arguments for affirming the dismissal.
Legal Analysis
1. Introduction: Defining the issues and setting the standards of review.
Apart from intervention, now moot given my colleagues’ decision to affirm dismissal, this appeal presents two substantive issues. First, did the district court correctly find an absolute privilege arising from the Free Exercise Clause? If not, has the Archdiocese articulated a sound basis for extending the church autonomy doctrine to Purdum’s suit? I address those issues before turning to a more detailed explanation of why I cannot join in the opinions my colleagues have advanced for affirming dismissal. I reiterate that the parties, to this point, have not briefed or argued Purdum’s purported consent either as a general defense to the libel claim or as a basis for applying tire church autonomy doctrine to dismiss the suit.
Because the material facts pertaining to the issues actually argued are undisputed, those issues present questions of law that this court reviews anew and without deference to the ruling below. Estate of Belden v. Brown County,
2. The district court erred in finding the Free Exercise Clause conferred an absolute privilege against legal liability.
The district court dismissed Purdum’s suit on the theoiy that Harcsar’s communication to the Archdiocese in her petition for annulment enjoys an absolute privilege arising from the Free Exercise Clause of the First Amendment. That construction of the Free Exercise Clause cannot be reconciled with governing United States Supreme Court precedent. Before turning to that law, I note that the First Amendment applies here, even though the suit and the underlying dispute concern only private parties. The parties do not argue otherwise.
Both the Free Exercise and Establishment Clauses have been incorporated through the Due Process Clause of the Fourteenth Amendment and, therefore, limit state action. Cantwell v. Connecticut,
The Free Exercise Clause substantially limits government action that discriminates based on religious tenets or “regulates or prohibits conduct because it is undertaken for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
A law is not considered neutral “if [its] object is to infringe upon or restrict practices because of their religious motivation.”
In the United States Supreme Court’s view, the Free Exercise Clause permits enforcement of neutral laws limiting or prohibiting particular activities even when those activities have been undertaken for religious reasons, thereby undercutting the argument for an absolute privilege grounded in the Clause. The sweeping protection of absolute privilege necessarily conflicts with the application of neutral laws to religious activity in any fashion. If those laws may be applied, even in some muted way, any residual protection for the affected religious activity cannot be absolute.
Purdum seeks to enforce a common-law cause of action remedying libel or defamation. For purposes of the Free Exercise Clause, the cause of action must be considered neutral and generally applicable. Arguing otherwise would be futile. The common law of defamation does not somehow treat allegedly actionable statements made as part of a religious practice or church sanctioned activity less favorably than other statements, as by diminishing the plaintiff s burden of proof or enhancing recoverable damages. See Black v. Snyder,
As I have noted, the district court cited and relied solely on a 50-year-old decision from a federal court in Iowa in finding an absolute privilege for Harcsar’s allegedly defamatory statement. Cimijotti,
Even standing alone, the Cimijotti decision, properly analyzed, provides only pallid support for an absolute privilege grounded in the Free Exercise Clause. In that case, Cimijotti sued his former wife and two other individuals for purportedly defamatory statements they made to priests- or other officials within the Catholic Church to secure a church approved divorce. The case, then, is factually similar to this one. The federal judge found Cimijotti could not successfully sue his former wife because she acted while they were still married and Iowa recognized the doctrine of inter-spousal immunity barring tort actions between husband and wife.
As a backstop, the judge also opined that “a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion.”
Both the judge in Cimijotti and the district court in this case allude to the need for confidentiality between a congregant and a cleric as a basis for recognizing a constitutionally based privilege against suit. The district court here suggested: “As held by the Cimijotti court, an individual’s right to engage in the free exercise of his or her religion is protected by the First Amendment; this is especially true when a penitent communicates with his or her minister.” But that reasoning confuses constitutional protection of religious practices, which is not absolute, with tire near universal evidentiary privilege prohibiting the disclosure of clergy-penitent communications. The evidentiary privilege rests on statutory enactment or common-law recognition rather than constitutional right. See Varner v. Stovall,
The Archdiocese devotes little attention in its appellate brief to the district court’s absolute privilege rationale. Apart from Cimi-jotti, the Archdiocese points to one other case mentioning an absolute privilege against suit purportedly founded on the Free Exercise Clause,- a mention that also amounted to dicta. Stepek v. Doe,
In Smith, decided nearly 25 years after Cimijotti, the United States Supreme Court doesn’t so much as mention a Free Exercise Clause privilege—an omission that would be curious given the issue presented and the reasoning of the decision. The Smith decision pointed to longstanding Free Exercise Clause jurisprudence recognizing: “ 'Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general, law not aimed at the promotion or restriction of religious beliefs.’ ” Smith,
In my view, the district court erred in holding the Free Exercise Clause enables an absolute.privilege precluding Furdum’s action against Harcsar. Judge- Green rejects an absolute-privilege as well. But that determination alone- doesn’t require remand because the Archdiocese has argued for dismissal of Eurdum’s suit based on the church autonomy doctrine. As an alternative basis for the out- ■ come below that the parties have briefed; the argument should be addressed. I next turn to it.
3. Neither the church autonomy doctrine nor the related undue entanglement doctrine affords a basis for dismissing this defamation action.
The Archdiocese advances the church autonomy doctrine and the allied undue entanglement doctrine as rules requiring dismissal of Purdum’s defamation suit on its face. Those principles reflect recognized constitutional limits on governmental intrusion into theological philosophies apd internal operations of religious organizations inextricably bound up with their teachings and their choices of who should impart those spiritual messages. They have roots in both religion clauses of tire First Amendment in that governmental involvement, especially through the judicial process, in deciding issues entwined with a religious group’s views of faith, divinity, redemption, and the like risks fostering establishment of a seemingly favored dogma or impairing the free exercise of disfavored dogma. But the Archdiocese has not sought to bolster
a. Scope of doctrines
The Establishment Clause and tire Free Exercise Clause together construct a sphere of protection for religious organizations designed to keep government actors at some measurable distance to avoid affecting institutional decisions about what to believe and who may best inculcate those beliefs. Hosanna-Taylor,
The doctrine traces back to Watson v. Jones,
This court recently restated the barrier in the religion clauses as insulating from government interference “ ‘ “quintessentially religious controversies” ’ ” addressing theological and doctrinal views. Church of God in Christ,
The sphere, then, affords religious groups breathing space for their theological views. Bryce,
Courts have recognized an allied concept of undue entanglement to limit government intrusion, through judicial proceedings and otherwise, into the internal affairs of religious organizations. Colorado Christian University v. Weaver,
There may be some differences in scope and application between the church autonomy
b. Treatment of neutral laws of general applicability
As I indicated earlier, the United States Supreme Court’s decision in Smith,
The Archdiocese mentions Smith only in passing and then simply to suggest its holding does not negate the church autonomy doctrine. Although that proposition is undeniably true, it glosses over the more basic question of Smith’s relevance to the issue here in prefei-ence to the church autonomy doctrine. The law of defamation is neutral as to religious belief or doctrine and is generally applicable. The law neither makes the publication of certain beliefs actionable nor imposes different standards for statements rooted in religious doctrine. To that extent, Smith governs in the sense defamation actions cannot be categorically dismissed as contraiy to the church autonomy doctrine simply because publication of the offending statement occurs in some religious context or proceeding. By the same token, however, a defamation claim, depending on the circumstances and the statement alleged to be actionable, would not automatically be impervious to the church autonomy doctrine. See Klagsbrun,
c. Archdiocese’s authority discussed
The Archdiocese’s argument on appeal is replete with cases recognizing church autonomy and undue entanglement principles. A number of them apply tiróse principles to dismiss defamation claims. But those cases do not replicate or even approximate the factual circumstances of this one. Based on that authority, I have been left with the clear impression that a ruling for Harcsar and the Archdiocese upholding the dismissal of Purdum’s suit would mark a substantial expansion of the religious clauses sphere.
In a number of the cases, a cleric dismissed from a position with a church sued the organization or the individual decision-makers for defamation or wrongful termination. The courts dismissed those actions based on church autonomy because the decisions were dependent on the constitutionally protected selection of religious leaders'—-the minister exception—and often involved internal divisions over the proper interpretation of ecclesiastical tenets. See, e.g., Milivojevich,
In Klagsbrun, a federal district court dismissed tire plaintiff s defamation action against the Va’ad, a group of Orthodox rabbis establishing common practices for a number of synagogues, because the claim would unduly entangle religious doctrine with judicial process. Klagsbrun disobeyed a rabbinical order to grant his wife a religious divorce and claimed, apparently without proof, the couple had already been divorced in conformity with Orthodox Jewish tenets. Klagsbrun had remarried. The Va’ad circulated a notice to the synagogues within its jurisdiction, including the one Klagsbrun attended, outlining the dispute and declaring Klagsbrun was “not entitled to any honors or participation in synagogue services and that all possible social sanctions should be place[d] against him.” Klagsbrun,
In Hadnot, the court affirmed the dismissal of a congregant’s claims against her church alleging both the reason for her excommunication and a letter sent to her stating the reason to be defamatory and otherwise tortious. The court found that “the First Amendment will protect and shield the religious body from liability for the activities carried on pursuant to the exercise of church discipline.”
Here, Purdum was not a member of the Catholic Church. The annulment did not affect his standing within the Catholic Church. In his suit, he does not seek to change in any way his relationship with the Catholic Church. Nor does he contend the
In a pair of cases, the courts refused to allow clerics investigated for violating church rules to bring defamation actions against those who accused them in tire internal disciplinary process. Stepek,
Relying heavily on Hiles, the Illinois Court of Appeals took essentially the same position in Stepek,
The rulings in Hiles and Stepek ultimately rest on the well-recognized autonomy religious organizations enjoy in selecting and regulating their spiritual leaders. The courts have recognized an especially robust protection from judicial intrusion for those decisions and the processes used in making those decisions. Purdum’s suit has nothing to do with those issues. And those cases fail as precedent supporting church autonomy here. As I have discussed, the Stepek court also cited Cimijotti’s unique recognition of absolute privilege for statements a congregant makes in any church proceeding as supporting dismissal. But Cimijotti had nothing to do with clergy discipline—the plain basis for the rule laid down in Hiles and adopted in Stepek.
Nor does Cimijotti really square up with the secondaiy rationale advanced in both
The Archdiocese relies heavily on Bryce,
In affirming the dismissal of Bryce’s suit, the Tenth Circuit relied exclusively on the church autonomy doctrine and never addressed the merits of the sexual harassment claim.
As the Tenth Circuit framed the facts and issues in Bryce, the church controversy and the resulting litigation necessarily hinged on religious doctrine. Biyce’s termination and the expressions she and her partner found harassing largely derived from how congregants and leaders of the particular church chose to interpret and apply denominational pronouncements about marriage as a Christian covenant. That civil suit inevitably would implicate die “correctness” of those distinctly religious beliefs. As I discuss in the next section, Purdum’s defamation action depends upon no comparable melding of Catholic Church teachings and the factual elements of his claim.
d. Purdum s suit is not barred by church autonomy or undue entanglement
Having surveyed church autonomy principles, including the minister exception and the related undue entanglement doctrine, and having reviewed the legal authority and argument the Archdiocese has presented on appeal, I fail to see an articulated basis in those constitutional protections requiring dismissal of Purdum’s defamation action against Harcsar. The Free Exercise Clause extends particularly robust protection to church decisions regarding the selection and intradenominational regulation of religious leaders. The minister exception does not apply here. And the Archdiocese makes no overt argument that it does. But much of the authority on which the Archdiocese relies entails decision-making regarding retention or discipline of clergy. The especially deferential treatment afforded religious organizations in that sphere doesn’t translate to the circumstances of this case either logically or legally. Nothing about this suit challenges or implicates the leadership of the Archdiocese or the Catholic Church. Purdum has not sued the Catholic Church, its subsidiary organizational entities, or any of its clergy—the only defendant is Harcsar. Nor does the suit amount to a collateral attack on a church decision to punish or dismiss a cleric.
Purdum alleges that the petition for annulment contains a factual representation about him that is false and defamatory. The representation has nothing to do with his religious beliefs or the Catholic Church’s ecclesiastical doctrine or views. He does not challenge or impugn teachings of the Catholic Church. Whether the statement is true or false does not depend upon church canon or dogma. Its purportedly defamatory character is similarly distinct from any set of religious values. A court or a jury would not be drawn into a theological debate or an evaluation of annulments or other Catholic ritual in assessing the statement’s falsity or its defamatory nature. In other words, the forum of publication—-as part of a request to the Archdiocese for an annulment—is immaterial to the content of the statement that Purdum says makes it libelous. The statement would have been no more or less false and defamatory if Harcsar never sought an annulment and, instead, had disseminated it to Purdum’s work supervisor. In his suit, Purdum requests monetary damages against Harcsar as his only relief. The Catholic Church faces no legal liability.
So the church autonomy doctrine simply does not come into play as Purdum has cast his legal action and as the Archdiocese has opposed it to this point. Rather, as I have suggested, Smith,
The undue entanglement doctrine fails as a defense for much the same reason church autonomy doesn’t require dismissal on this limited record. The protections against entanglement serve fundamentally the same purpose by preventing excessive government intrusion into religious belief and practice. Given the contours of Purdum’s suit, the defamation claim does not intrude into, challenge, or require an assessment of Catholic tenets generally or annulments specifically.
The Archdiocese also suggests an undue entanglement may arise from discovery, apart from any substantive review of Catholic doctrine. Judge Green also alludes to discovery as entangling. The Archdiocese anticipated it would be asked to provide documents— either through a request for production if it were a party or a subpoena if it were not—and church officials involved in the annulment process would be deposed. That certainly seems to be a reasonable expectation. The Archdiocese argues discovery would impermissibly intrude on Catholic Church practices and confidential information. Those fears, however, look to be unwarranted and so would not justify dismissing Purdum’s suit.
Civil discovery frequently requires disclosure of confidential or otherwise sensitive material, such as medical records, tax and financial information, or proprietary trade or research data. The Kansas Code of Civil Procedure recognizes multiple ways of protecting that sort of docuznentary evidence through protective orders or other judicial control. See K.S.A. 2012 Supp. 60-226(c). A court may prohibit excessively intrusive discovery that lacks some demonstrable purpose. It may allow production of redacted documents or require that materials produced be maintained and used in a strictly
At oral argument, counsel for Purdum suggested discoveiy from the Archdiocese would be aimed at substantiating dissemination of Harcsar’s statement in the annulment petition. In other words, Purdum would seek information about who saw or discussed the contents of the annulment petition and specifically the allegedly defamatory statement, presumably along with its impact, if any, on their views of his reputation. See Byers v. Snyder,
The request for production Judge Green cites appears to be overly broad. But propounding too expansive a discovery request cannot justify dismissing a plaintiff s suit or conversely justify entering judgment against a defendant. A district court has the authority to focus discovery, prevent abusive discovery, and to insure confidentiality when necessary. Chronic discovery abuse in a given case would be another matter, potentially calling for harsh sanctions up to and including entry of an adverse judgment. See K.S.A. 2012 Supp. 60-226(f)(3). But that’s not the issue here. Appropriately tailored discovery pertaining to Purdum’s libel claim would not result in constitutionally impermissible entanglement of the courts in church doctrine or decision-making. The district court presumably would monitor the pretrial proceedings as necessary and enter those orders required to avoid unduly entangling or intrusive inquiry while generally permitting appropriate discovery contemplated in civil suits.
In sum, the Archdiocese has chosen to present its argument as if church autonomy and undue entanglement principles already-— plainly and obviously—govern this case. As the Archdiocese has framed tire issues based on Purdum’s libel claim, its premise looks to be incorrect. And the Archdiocese' really has offered no studied argument for a reasoned expansion of either of those doctrines to reach tire libel alleged here. Given the record and the issues presented, the district court correctly rejected church autonomy and undue entanglement as bases to dismiss Purdum’s suit at the pleading stage.
Before closing this discussion, I comment on an argument the Archdiocese has offered to bolster its expansive interpretation of the religion clauses without separately identifying that position or citing supporting authority. At several points in its brief, the Archdiocese submits that persons such as Harcsar may be reluctant or flat unwilling to request annulments if they believe they may be sued for what they put in their petitions and that other persons may be deterred from supporting those petitions for tire same reason. The Archdiocese says suits for defamation, like Purdum’s, must be dismissed under the religion
In making that suggestion, the Archdiocese, without explanation, tries to transplant a recognized, though limited, avenue for challenging direct government action, typically in the form of criminal statutes, impairing or inhibiting constitutionally protected speech. See Virginia v. Hicks,
The religion clauses, however, do not appear to support a constitutionally based chilling-effect argument as part of the church autonomy doctrine or otherwise. See American Family v. City & County of San Francisco,
Here, Harcsar faced no criminal or other statutory recrimination, and no governmental entity has threatened her or taken action against her. Likewise, no one else seeking an annulment would confront direct government action imposing a penalty or similar legal detriment for doing so. On that basis alone, the Archdiocese’s reliance on a constitutionally grounded chilling-effect argument seems to be without legal force.
Even if I were to suppose a private suit asserting a common-law claim amounted to tire sort of government action that would permit threshold consideration of a chilling-effect argument—an extravagant supposition—defamation wouldn’t otherwise fit. The law of defamation permits private parties a remedy for falsehoods injurious to their reputations. As I pointed out earlier, those claims have long been recognized as serving legitimate personal and societal interests. See Kiesau v. Bantz,
Many of those safeguards apply equally here. And they afford Harcsar or anyone else seeking an annulment considerable protection
Because Harcsar’s challenged statement was entirely secular, although disseminated in a l'eligious ritual, the Archdiocese’s position would, in effect, insulate any communication made in the course of a religious practice from civil liability for defamation, even though tire content might be actionable if published in another forum. As I have pointed out, that position is difficult to reconcile with Smith. The argument also would accord especially favored treatment to religious proceedings compared to other means of communication when it comes to defamation law—a position difficult to reconcile with the Establishment Clause’s limitation on governmental preference for religious activity. See 6 Rotunda & Nowak, Treatise on Constitutional Law § 21.6(d) (4th ed. 2007) (“An exemption from law of general applicability . . . that only provided an exemption for members of a specific religion, or an exemption only for persons who held religious beliefs, would establish a denominational preference that would violate the establishment clause.”). So either chilling-effects arguments have no basis in the religion clauses, or, at the very least, they ought not be used to defeat defamation actions based on secular statements made in the course of religious ritual or practice.
Moreover, statements of religious belief or doctrine and statements related' to the selection or regulation of spiritual leaders would otherwise be protected under the church autonomy doctrine so any chilling-effect protection would be superfluous for them. Many secular statements would be shielded that way. For example, an intrachurch complaint that a cleric had sexually abused a minor is a secular statement, but it would not support a defamation claim based on tire minister exception rather than on any chilling-effect theories borrowed from free speech jurisprudence. The Archdiocese again looks to be augmenting accepted religious clause law without a reasoned basis for doing so.
4. Opinions to affirm incorrectly invoke subject matter jurisdiction and improperly rely on issues the parties have not raised.
In their separate opinions finding that Purdum’s suit should be dismissed on die pleadings, Judge Green and Judge Bruns incorrectly characterize the issues they address as going to the court’s subject matter jurisdiction. They really are affirmative defenses that do not cut off the court’s jurisdictional authority. The error affects how those issues ought to be treated on a motion to dismiss presented under K.S.A. 2012 Supp. 60-212(b) or for judgment on the pleadings under K.S.A. 2012 Supp. 60-212(c). Even if the issues dealt with subject matter jurisdiction, my colleagues err in taking them up now because the parties have never asserted or briefed them. The factual record is materially incomplete, particularly on consent, and argument from counsel nonexistent. A court ought not dismiss even on jurisdictional grounds without hearing from the parties on the issue.
a. Subject matter jurisdiction not at issue; defendants raise affirmative defenses
Subject matter jurisdiction confers authority on a court to hear a particular type of case. Chelf v. State,
But absolute privilege, church autonomy, and consent do not deprive a court of subject matter jurisdiction. They are, rather, affirmative defenses that if proven defeat a plaintiff s substantive claim. And that limits how they may be treated under K.S.A. 2012 Supp. 60-212. If a court were to properly consider those defenses at this stage in the case, it would be on a motion to dismiss for failure to state a claim under K.S.A. 2012 Supp. 60-212(b)(6) or for judgment on the pleadings under K.S.A. 2012 Supp. 60-212(c). The same standard governs both and permits dismissal only if the facts alleged or admitted in the pleadings demonstrate no theory of relief for the plaintiff or an insuperable legal bar to relief. Rector v. Tatham,
Courts have regularly recognized privilege to be an affirmative defense to a claim and not something that negates subject matter jurisdiction. General Elec. Co. v. Sargent & Lundy,
Similarly, church autonomy and the correlative minister exception and undue entanglement are affirmative defenses and not doctrines depriving courts of subject matter jurisdiction. Hosanna-Tabor,
In tire context of a libel or defamation action, consent of the injured party is also an affirmative defense to the claim—not a prohibition of the court’s authority to hear the suit. Bogie v. Rosenberg,
Because privilege and consent—in whatever form they might be considered—are defenses to Purdum’s cause of action for libel and would not—even if proven—deprive the courts of subject matter jurisdiction, they must be considered under the demanding standards for motions to dismiss under K.S.A. 2012 Supp. 60-212(b)(6) or judgments on the pleadings under K.S.A. 2012 Supp. 60-212(c). Measured that way, there are no factual averments in the pleadings establishing the nature and extent of Purdum’s consent either to allowing the Catholic Church to annul his marriage to Harcsar or to being defamed in that process.
Neither this court nor the district court could have entered judgment against Purdum based on the factual averments in the amended petition, the answer, or the two pleadings taken together. The only mention of consent turns up in a single paragraph of Harcsar’s answer asserting Purdum “consented to Defendant’s alleged defamatory statements by being married in the Catholic Church and signing a confidentiality agreement with the Church” and characterizing that assertion as an affirmative defense. While that assertion preserves the issue, see K.S.A. 2012 Supp. 60-208(c) (affirmative defenses
Judge Green and Judge Bruns incorrectly treat those issues as challenges to subject matter jurisdiction and, therefore, err in considering evidentiary materials outside the pleadings, particularly the affidavits attached to the Archdiocese’s motion to dismiss. Their review properly should be confined to the pleadings alone.
If a court considers materials outside the petition or pleadings in weighing dismissal under K.S.A. 2012 Supp. 60-212(b)(6) or K.S.A. 2012 Supp. 60-212(c), the motion must then be treated as one for summary judgment. K.S.A. 2012 Supp. 60-212(d); State ex rel. Slusher v. City of Leavenworth,
Purdum’s amended petition arguably does contain sufficient factual averments to consider an affirmative defense of absolute privilege based on Harcsar’s making the defamatory statement to the Archdiocese in support of her request for an annulment and publication being confined to review in that process. But the district court erred as a matter of law in recognizing an absolute privilege deriving from the religion clauses, as Judge Green and I agree. Judge Bruns, therefore, mistakenly relies on the phantom Cimijotti privilege in opting to uphold the dismissal, and that is true whether the privilege, if it actually existed, ought to be treated as an affirmative defense or a bar to subject matter jurisdiction.
The same cannot be said of consent. The amended petition and the answer simply contain no factual averments sufficient to determine the nature and scope of Purdum’s consent and, in turn, to assess its legal implications. On the record before us, a motion to dismiss or for judgment on the pleadings based on consent must fail. For that reason alone, consent cannot provide an alternative basis to uphold the judgment against Purdum.
b. Purdum has not been given an opportunity to address consent
Even if I am wrong in characterizing consent—the cornerstone of Judge Green’s decision to affirm and a substantial weight-bearing beam in Judge Bruns’ opinion—as an affirmative defense, there is a more fundamental flaw in affirming on that ground. The issue of consent was never briefed or argued to the district court as a basis for dismissal, and it has not been briefed or argued here. Accordingly, the parties have not had an opportunity to address the issue. And, more specifically, Purdum hasn’t been given a chance to argue his case against dismissal based on consent.
Assuming consent actually goes to subject matter jurisdiction, the court has an obligation to acknowledge the issue although the parties have not. Ryser v. State,
Here, however, Judge Green and Judge Bruns have done just that in reaching out to affirm based on Purdum’s consent. They do not suggest the issue has been raised or argued. They point to nothing in the briefs arguing consent. There is nothing. Judge Green extracts a generic paragraph from the affidavit of Monsignor William J. King submitted to the district court with the Archdiocese’s motion to dismiss—a motion that did not raise consent as an issue. The description refers to die consent couples commonly malee in preparation for a sacramental marriage. But Monsignor King did not attend to Purdum and Harcsar in their wedding preparation. Purdum has not had any opportunity to provide his version of what he consented to. Nor has he had a need to do so, since consent was not an issue argued to the district court or in the appellate briefing. It has only become an issue with the release of this opinion. Neither side, of course, has offered legal argument or authority on consent.
Judge Green takes the same approach with qualified privilege, a defense to defamation claims independent of religions clause issues. The parties have not briefed or argued any of the myriad defamation defenses that might be available to Harcsar. All of those issues were deferred while the parties battled over church autonomy and absolute privilege. At this juncture, this case should no more be decided on qualified privilege than on consent.
The proper course, here, would be to reverse and remand on the issues that actually have been briefed. In due course, the district court would then take up consent and any defamation defenses Harcsar might assert. Will assessing the nature and scope of Purdum’s consent to a sacramental marriage itself unduly entangle the district court in the religious values and doctrine of the Catholic Church? Perhaps. Is Harcsar entitled to qualified privilege? Maybe. But until the parties frame tiróse issues factually and present their view of the controlling law, the court has no way of knowing.
My colleagues’ willingness to raise and decide consent as a jurisdictional issue without a factual record and legal argument is both inappropriate and wrong on multiple levels. If nothing else, it seems manifestly unfair.
c. In affirming, the majority opinions mask the constitutional issues
Finally, I would suggest Judge Green and Judge Bruns have couched their positions almost as if Purdum had sued the Archdiocese and sought to upend the annulment, when, of course, he has done neither. That camouflages the complexity of the constitutional issues this case actually presents. If Purdum were suing to prevent the Catholic Church from annulling his sacramental marriage to Harcsar, the dispute would be relatively straightforward with settled law against him. See Milivojevich,
Judge Green submits that “Purdum’s defamation action involves an ecclesiastical subject matter,” thereby entangling the courts in “a church matter.” He cites Watson, the United States Supreme Court case predating Fourteenth Amendment incorporation, in support of his position. Watson,
Judge Green then concludes with rhetorical inquiries. He first suggests a fact-finder in this case could not determine if Harcsar made the bipolar statement believing it to be true without also exploring her religious sincerity or conscience. But posing the question really doesn’t dictate the answer. Just how Harcsar’s religious sincerity bears on whether she knew a representation that Purdum was bipolar might be true or false is hardly clear. If Judge Green is suggesting that Harcsar could succeed by arguing that as a devout Catholic she sincerely wanted an annulment so die representation was justified true or not, he ventures into the area of religious necessity as a defense, another legal issue essentially unexplored in this case. Though it would be, at best, a debatable defense. See Smith,
As I have suggested, Judge Brans errs in disposing of this case for lack of subject matter jurisdiction by relying, at least in part, on the unfounded absolute privilege described in Cimijotti. Judge Brans submits that such a privilege, emanating from the religious clauses of the First Amendment, is “imperative” for the Roman Catholic Church to provide annulments of sacramental marriages. But he cites no authority, apart from Cimijotti, for that privilege. The circumstances here arguably belie its necessity—the Catholic Church has granted Harcsar’s
The record and the actual argument of the parties require a narrow conclusion to this appeal allowing Purdum to continue. On a factually developed record, his case might fall based on religious clause protections or defamation law defenses. But we have no legal warrant for accelerating the judicial process to dispense with discovery and to dismiss on grounds that haven’t been presented, let alone argued.
I would reverse and remand for further proceedings.
Notes
The penitential communication privilege codified in K.S.A. 60-429 probably does not apply to the statements Harcsar included in her petition for an annulment. Assuming they otherwise qualified as a “penitential communication,” the statements fail the statutory test because Harcsar could not have intended them to be “secret and confidential,” since they were disclosed to Purdum as part of the protocols for the annulment process. But communication to Purdum would not amount to actionable publication to support a defamation claim. Restatement (Second) of Torts § 577 (1976), comment b (“To constitute publication it is necessary that tlie defamatory matter be communicated to someone odier than the person defamed.”)- Purdum’s inability to bring suit based on disclosure to him would not preserve the evidentiary privilege, since the privilege depends upon on the penitent’s expectation of confidentiality for die communication and not on whether the communication might be legally actionable on some tiieory if it were no longer confidential.
On die matter of privilege, I mention in passing Redgate v. Roush,
Botli Watson and King predate the recognized incorporation of the religion clauses of the First Amendment through the Fourteenth Amendment, so tiróse decisions did not, strictly speaking, rely on constitutionally grounded rights. They reflected jurisprudential principles found in the common law. Neither case directly discussed or explicitly cited the First Amendment. But Watson described the political philosophy of the nation as recognizing a clear divide between institutions of government, particularly the courts, and institutions of religion and then invoked that philosophy, with citations to supporting caselaw, to declare disputes based on religious beliefs or “theological controversy” to be outside any appropriately exercised judicial authority. In turn, that declaration informed King and, more broadly, the postincorporation scope of die religion clauses.
Congress has legislatively sought to limit Smith through the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb etseq. (2006), and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc et seq. (2006). Neither applies here. The United States Supreme Court has held that RFRA does not apply to the states. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
The court expressly declined to rely on the minister exception affording constitutional protection to church decisions regarding hiring, discipline, and termination of religious or spiritual leaders. The panel found the inquiry unnecessary and declined to conclude Bryce functioned as a minister, notwithstanding her job title.