Church of Jesus Christ of Latter-Day Saints v. Superior Court In and For Maricopa County

• Decision Date: 21 July 1988
• Docket Number: CA-SA,No. 1,LATTER-DAY,1
• Citation: 764 P.2d 759,159 Ariz. 24
• Parties: The CHURCH OF JESUS CHRIST OFSAINTS, a Utah corporation sole, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Cheryl K. Hendrix, a Judge thereof, Respondent Judge, Cynthia BROWN, as Guardian for Adriene Leigh Brown; Willa Ray; Kenneth Ray, Real Parties in Interest. 267.
• Court: Arizona Court of Appeals

Page 759

764 P.2d 759

159 Ariz. 24

The CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, a Utah corporation sole, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, the Honorable Cheryl K. Hendrix, a Judge thereof, Respondent Judge Cynthia BROWN, as Guardian for Adriene Leigh Brown; Willa Ray; Kenneth Ray, Real Parties in Interest.

No. 1 CA-SA 267.

Court of Appeals of Arizona Division 1, Department B.

July 21, 1988.

Review Denied Dec. 20, 1988.

[159 Ariz. 25] Vermeire & Turley, P.C. by Kent E. Turley, Phoenix, for defendant/petitioner.

Steven M. Friedman, P.C. by Steven M. Friedman, Phoenix, for plaintiff/respondent.

Lewis & Roca by Douglas L. Irish, and Janet Napolitano, Phoenix, for amicus curiae, Diocese of Arizona (The Episcopal Church).

Guy M. Buckley, Mesa, for real party in interest Willa Ray.

OPINION

FIDEL, Judge.

In this special action, The Church of Jesus Christ of Latter-Day Saints invokes the clergyman/penitent privilege on behalf of three of its officers, asserting that, as lay priests of the church, they are privileged to resist certain discovery orders of the superior court. The Church also asserts that defendant Kenneth Ray, a former member now excommunicated, is privileged as a penitent to resist the court's discovery orders.

Underlying this proceeding is a personal injury action arising from the sexual molestation of a young girl. Cynthia Brown, the child's mother, brings this suit on her daughter's behalf against Kenneth Ray, the alleged molester, Willa Ray, his former wife, and the Church. Brown seeks to discover information to support her claim that the Church negligently exposed children such as her daughter to Ray's abuse when it earlier undertook to counsel and treat Ray as a child molester, did so carelessly, and violated its affirmative duty to report Ray's conduct to appropriate authorities of the state. ¹

Three officers of the Church--George Standage, Art Bailey, and Earl Taylor--were ordered by the trial court to submit to depositions by plaintiff's counsel and to disclose certain conversations with and about Ray at a time preceding his contact with the Brown child. Ray was likewise ordered to submit to deposition about his contact and communications with these officers. Although the trial court accepted the Church's claim that these communications were privileged in part, it rejected the claim that they were entirely privileged. From the trial court's order that the depositions proceed along certain lines of permissible questioning, the Church seeks special action review.

Jurisdiction

When a trial court orders disclosures that a party or witness believes to be protected by a privilege, appeal provides no remedy. Special action is the proper means to seek relief. For that reason, and because this petition presents issues of statewide importance, we accept review.

Facts

The facts, as best we can discern them from the record on special action, are these: On March 20, 1984, Cynthia Brown, the plaintiff, went to pick up her three and a half year old daughter at the home of Kenneth and Willa Ray; the Rays had been babysitting her child regularly since 1982. Willa Ray informed Mrs. Brown that afternoon that Kenneth Ray had a sexual problem and had molested his own daughters. Mrs. Brown, who had been troubled by her daughter's abnormal interest in sexual behavior over the past year, suspected that her daughter had become Ray's victim. On the following day, Mrs. Brown reported her concern to the Mesa Police Department, which had already begun to investigate other reports of molestations by Ray.

Two weeks earlier, on March 9, 1984, Allen Farnsworth, Ray's stake president, a local officer in the LDS Church, had been informed of an unrelated molestation by Ray. Farnsworth asked Ray's ward bishop, Harold Stradling, to confront Ray with the allegation; when Stradling did so, Ray admitted it and acknowledged similar acts with other young girls. On March 13, 1984, the Church excommunicated Ray for conduct unbecoming a member. The following day, pursuant to A.R.S. § 13-3620(A), ² Farnsworth reported Ray's actions to the Child Protective Services Agency of the Arizona Department of Economic Security.

Ray was subsequently investigated, prosecuted, and, upon his entry of a no contest plea, convicted for various counts of molestation including the molestation of the plaintiff's child. Portions of the Mesa Police Department's investigative report on Ray have been provided for our review. According to that report Ray admitted to the police that he had molested the Brown child at least twice when she was two years old, and he admitted molesting numerous other children over a period of more than twenty years. Ray discussed with the police a document that he had prepared for Farnsworth and Stradling and that an officer of LDS Social Services had provided to the police. On it, Ray had listed thirty-three of his victims. He also volunteered the names of Standage, Bailey, and Taylor to the police as church officials with whom he had earlier discussed "his problem." We quote that portion of the police report concerning Standage, Bailey, and Taylor:

At this point I asked Mr. Ray how many times he had had contact with church authorities in reference to his sexual problem. Mr. Ray told me that in 1968 he had had contact with a Bishop George Standage reference sexual contact with a twelve (12) year old named Debbie and his daughter.... Mr. Ray stated that this Bishop Standage sent him to see a Franklin Gibson for counseling. Mr. Ray further stated that he had seen a Bishop Art Bailey while he was in Albuquerque, New Mexico, during the period of May 1976 to May 1980 and that he had told this Bishop Bailey about dating an adult female and also about his contact with the twelve (12) year old Debbie, last name unknown, and his daughter ..., but he did not go into specifics. Mr. Ray states that he cannot recall the outcome of that encounter. Mr. Ray further states that he had contact with a Bishop Taylor who was a Stake President during 1976, that this Bishop Earl Taylor called him from Mesa while he was in Albuquerque and advised him that Anita Jo and Roseann ... had come forward about the incident in which they were molested while they were seven (7) and eight (8) years of age. Mr. Ray stated that he was advised at that time to have regular contact with his local Bishop but that he disregarded that church mandate.

Plaintiff's counsel now wishes to depose Ray, Standage, Bailey, and Taylor concerning the discussions disclosed to the Mesa Police. All claim that the conversations are privileged. Standage acknowledges that on several occasions from late 1971 until 1975, while serving as bishop of Ray's ward, he "interviewed and counseled privately ... with Mr. Ray about various matters," but he declines to disclose the substance of those discussions. Taylor acknowledges that in the fall of 1976, in his capacity as first counselor in the stake presidency in the Mesa, Arizona, Salt River Stake of the LDS Church, he telephoned Ray, then residing in Albuquerque, "to inquire as to his spiritual condition, due to information received ... pertinent to his continued exercise of the rights and privileges accorded an adult priesthood holder and member of the LDS Church...." Taylor declines to disclose the substance of those discussions. Bailey has testified that he served as Ray's ward bishop in 1976 when Ray moved to Albuquerque, New Mexico, but has refused to testify whether, in that capacity, he confronted Ray with allegations of child molesting. He has also refused to testify whether Ray admitted such allegations to him or whether he communicated with church officials in Arizona concerning allegations of molestations by Ray.

Taylor explains by affidavit that

"confession, review, and discussion of more serious sin and error with one's Bishop, Stake President, or Counselors ... is required of every adult member" of the LDS Church; "that all such confessions ... are private and confidential" whether or not the member initiates the confession and regardless of where and when they take place; and that "information received from the member by the Bishop in the above confessions ... is confidentially shared, on occasion, with the Stake President, and/or with his Counselors ... with the express knowledge and/or consent of the member...."

The conversations in question all fell within this ritual of confession, according to the Church, and thus are shielded from discovery by the clergyman/penitent privilege.

Disposition

The trial judge propounded a line of permissible discovery by making two sets of distinctions. First she distinguished conversations among church officials about Ray from conversations by church officials with Ray. The former, she found, were not privileged. Thus, Bailey could be deposed concerning his contact, if any, with Arizona church officials about Ray. Second, as to conversations with Ray, the trial court distinguished privileged "confessional communications," i.e., statements "penitential in nature for the purpose of seeking religous or spiritual advice, aid, or comfort," from unprivileged "statements of guilt elicited during interviews." She concluded, as we understand her ruling, that the plaintiff could proceed with discovery to determine whether portions of Ray's conversations with the other deponents fell within the protected first category or the unprotected second. Thus, plaintiff's counsel could ask the deponents such questions as 1) who initiated contact with Ray; 2) what led the others to initiate contact with Ray, if they did so; 3) what, if anything, the others said to Ray that elicited any confessions or admissions he may have made; and 4) whether, if Ray made confessions or admissions, he did so "to seek foregiveness."

The Church claims that the trial court erred in distinguishing privileged from non-privileged communications on the...