In re Contempt of Swenson
| Decision Date | 26 June 1931 |
| Docket Number | 28,545 |
| Citation | 237 N.W. 589,183 Minn. 602 |
| Parties | IN RE CONTEMPT OF EMIL SWENSON |
| Court | Minnesota Supreme Court |
Certiorari upon the relation of Emil Swenson to review an order of the district court for Hennepin county, Guilford, J adjudging him in contempt for refusing to answer certain questions put to him as a witness in a divorce action, his contention being that the statements communicated to him as a clergyman were privileged. Reversed.
Privileged confession to clergyman.
For a confession to a clergyman to be privileged under G.S. 1923 (2 Mason, 1927) § 9814(3) it must be penitential in character and made to him in his professional character as such clergyman in confidence while seeking religious or spiritual advice, aid, or comfort. The court cannot require the disclosure of the confession to determine if it is privileged; but must determine that question from the circumstances and facts leading up to the making of the confession. The disclosure should not be required unless it appears that the claim of privilege is erroneously made. Under the facts stated in the opinion the confession was privileged.
Walter S. Lundeen, for relator.
Henry N. Benson, Attorney General, James E. Markham, Deputy Attorney General, and John F. Bonner, Assistant Attorney General, for respondent.
Paul J. Thompson and Thompson, Hessian & Fletcher, filed a brief by permission of the court on behalf of the Minneapolis Church Federation.
Certiorari to review an order of the district court adjudging relator in contempt of court for refusing to answer certain questions while a witness in an action wherein Gladys V. Sundseth sought a divorce from her husband, Arnold C. Sundseth, on the ground of adultery.
Relator is a clergyman in the Lutheran church and pastor of the Bethlehem Lutheran Church in Minneapolis. In the divorce suit plaintiff sought to prove by relator that the defendant therein stated to relator that he, the defendant, had had adulterous relations with a woman whom he named. Relator's refusal to testify is based upon the claim that such statements as Sundseth made to him were made to him as such clergyman, and it is claimed that the communications were privileged.
Under the common law communications made to a minister of the gospel were not privileged. Some judges have expressed the belief that while the information could not legally be withheld from a court of law, the disclosure of such information ought not to be compelled. Since about 1846 the courts have manifested a reluctance to enforce the common law rule, with which we are now concerned. But it is definitely established that the common law did not recognize such privilege. 5 Jones, Ev. (2 ed.) p. 4152, § 2181; 5 Wigmore, Ev. (2 ed.) § 2394; 28 R.C.L. p. 520, § 108; L.R.A. 1917D, 278, Anno; Normanshaw v. Normanshaw, 69 L.T. Rep. 468; Bahrey v. Poniatishin, 95 N.J.L. 128, 112 A. 481; Best, Ev. (12 ed.) p. 499, § 583, et seq; 6 N.C.L. Rev. 462.
G.S. 1923 (2 Mason, 1927) § 9814(3) relating to privileged communications, reads:
"A clergyman or other minister of any religion shall not, without the consent of the party making the confession, be allowed to disclose a confession made to him in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs."
Obviously the legislature was not satisfied with the common law rule. What then was the purpose in passing the statute? If we are to construe this statute as meaning that the only "confession" that is privileged is the compulsory one under the rules of the particular church, it would be applicable only, if our information is correct, to the priest of the Roman Catholic church. Certainly the legislature never intended the absurdity of having the protection extend to the clergy of but one church. Had the legislature intended so to limit the privilege, the word "priest" would probably have been used instead of "clergyman." But the statute says "clergyman or other minister of any religion," showing that the thought was to embrace the spiritual adviser of any religion, whether he be termed priest, rabbi, clergyman, minister of the gospel, or any other official designation. It includes anyone who may stand as a spiritual representative of his church. The statute also refers to the "rules or practice of the religious body to which he (the clergyman) belongs." Obviously the language of the statute forbids its limitation to the spiritual adviser of any one church.
We are of the opinion that the "confession" contemplated by the statute has reference to a penitential acknowledgment to a clergyman of actual or supposed wrongdoing while seeking religious or spiritual advice, aid, or comfort; and that it applies to a voluntary "confession" as well as to one made under a mandate of the church. The clergyman's door should always be open; he should hear all who come regardless of their church affiliation.
The word "discipline" has various meanings. It may relate to education. It involves training and culture. It may mean training in moral rectitude, and it was probably in part so used here. It may refer to rules and duties. The word has no technical, legal meaning and in its common and most general sense signifies instruction, comprehending the communication of knowledge and training, to observe and act in accordance with certain rules or practice, and may include correction. Stitt v. Locomotive Engineers M.P. Assn. 177 Mich. 207, 142 N.W. 1110. The "discipline enjoined" includes the "practice" of all clergymen to be trained so as to advance such "discipline," to be alert and efficient in submission to duty, to concern themselves in the moral training of others, to be as willing to give spiritual aid, advice or comfort as others are to receive it, and to be keenly concerned in reformatory methods of correction leading towards spiritual confidence. So it is in the course of "discipline enjoined" by the "practice" of their respective churches that the clergyman is to show the transgressor the error of his way; to teach him the right way; to point the way to faith, hope, and consolation; perchance, to lead him to seek atonement.
The statute has a direct reference to the church's "discipline" of and for the clergyman and as to his duties as enjoined by its...
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