Malicki v. Doe

Decision Date14 March 2002
Docket NumberNo. SC01-179.,SC01-179.
PartiesJan MALICKI, St. David Catholic Church, and the Archdiocese of Miami, Petitioners, v. Jane DOE, et al., Respondents.
CourtFlorida Supreme Court

James F. Gilbride and Adam D. Horowitz of Gilbride, Heller & Brown, P.A., Miami, FL; and J. Patrick Fitzgerald, Coral Gables, FL, for Petitioners.

May L. Cain and William J. Snihur, Jr. of Cain & Snihur, North Miami Beach, FL, for Respondents.

Peter A. Miller of Conroy, Simberg & Ganon, Coral Gables, Florida; and Law Offices of Robert S. Glazier, Miami, FL, for Miami Shores Presbyterian Church, Amicus Curiae.

Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, FL, for Academy of Florida Trial Lawyers, Amicus Curiae.


We have for review the Third District Court of Appeal's decision in Doe v. Malicki, 771 So.2d 545 (Fla. 3d DCA 2000), which expressly construes the First Amendment of the United States Constitution. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.1 The issue presented in this case is whether the First Amendment bars a third-party tort action against a religious institution grounded on the alleged tortious act by one of its clergy. We conclude that the First Amendment does not provide a shield behind which a church may avoid liability for harm caused to an adult and a child parishioner arising from the alleged sexual assault or battery by one of its clergy, and accordingly approve the Third District's decision. We thus join the majority of both state and federal jurisdictions that have found no First Amendment bar under similar circumstances.2


Jane Doe I and Jane Doe II ("parishioners") jointly brought an eight-count lawsuit against Father Jan Malicki ("Malicki"), St. David Catholic Church, and the Archdiocese of Miami (the second two defendants are referred to collectively as "Church Defendants"). The parishioners alleged in their complaint that, at the time of the incident, Jane Doe I was a minor parishioner who worked at St. David in exchange for her tuition to attend St. Thomas Catholic High School,3 and that Jane Doe II was an adult parishioner who worked at St. David and was under the direct control and supervision of Malicki and the Church Defendants.

The complaint alleges that on numerous occasions, Malicki "fondled, molested, touched, abused, sexually assaulted and/or battered" the parishioners on the premises of St. David. Moreover, Count I also alleges that on numerous occasions, Malicki unlawfully served alcohol to Jane Doe I. Counts I and II set forth claims of negligent hiring, retention, and supervision against the Church Defendants based upon Malicki's conduct. In particular, the complaint alleges that the Church Defendants "knew, or in the exercise of reasonable care, should have known, [that Malicki] was unsuited for teaching, counseling, spiritually guiding, supervising and leading employees and parishioners." Moreover, the parishioners assert that the Church Defendants negligently failed "to make inquiries into Malicki's background, qualifications, reputation, work history, and/or criminal history prior to employing him in the capacity of Associate Pastor." Finally, the parishioners contend that the Church Defendants negligently placed them under the supervision of Malicki, when the Church Defendants either knew or should have known that Malicki had the propensity to commit sexual assaults and molestations.4 The Church Defendants moved to dismiss the complaint, arguing, among other claims, that the resolution of these issues would "involve the internal ecclesiastical decisions of the Roman Catholic Church required by Canon Law" and therefore are barred by the First Amendment. Moreover, the Church Defendants argued that the parishioners' negligence claim was improper because the parishioners failed to establish a secular duty and the parishioners failed to establish a sufficient physical injury to establish their emotional damages.

The trial court reached only the First Amendment argument and entered an order granting the Church Defendants' motion to dismiss with prejudice, concluding that the First Amendment barred consideration of the parishioners' claims. On appeal, the Third District reversed and remanded. The Third District framed the issue as whether the Church Defendants had reason to know of Malicki's misconduct and did nothing to prevent reasonably foreseeable harm from being inflicted on the parishioners. See Malicki, 771 So.2d at 548

. Because this determination "is one governed by tort law and does not require inquiry into the religious doctrines and practices of the Catholic Church," the Third District concluded that the First Amendment did not bar consideration of the parishioners' claims. Id.

Chief Judge Schwartz wrote a dissenting opinion, in which he took issue with the majority's premise that the resolution of these issues turned on neutral principles of tort law. See id. at 548 (Schwartz, C.J., dissenting). Chief Judge Schwartz stated that it was erroneous to equate "the relationships between the church, its bishops and its priests—and any consequent tort responsibility for hiring, firing, retention and assignment ... to those involving, say, a landlord and the custodian to whom it entrusts the keys to the tenants' apartments." Id. Chief Judge Schwartz reasoned that it would be inconceivable to hold the Church Defendants to the secular standard of a reasonable businessman, and that it would be unconstitutional to hold the Church Defendants to the standard of a reasonable church. See id. at 550. Therefore, Chief Judge Schwartz concluded that the First Amendment barred consideration of the parishioners' claims in this case.


The general issue presented in this case is whether, in the name of the First Amendment, religious institutions can be shielded from otherwise cognizable tort claims caused by their agents and employees. In the context of this case, the specific question is whether the First Amendment bars a secular court's consideration of the parishioners' claims of negligent hiring and supervision against the Church Defendants based upon the claim that Malicki "fondled, molested, touched, abused, sexually assaulted and/or battered" the minor and adult parishioners.

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. The First Amendment, which is one of the hallmarks of our Bill of Rights, contains two clauses regarding religion— the Free Exercise Clause and the Establishment Clause. This constitutional guarantee is made applicable to the states through the Fourteenth Amendment. See Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000)

; Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 757, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995).

The Free Exercise Clause guarantees "first and foremost, the right to believe and profess whatever religious doctrine one desires." Employment Div. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Moreover, "[a]t a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons." Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

The United States Supreme Court has explained that the Free Exercise Clause "embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). Thus, the First Amendment has never been interpreted to mean that "when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from government regulation." Smith, 494 U.S. at 882, 110 S.Ct. 1595. Government regulation includes both statutory law and court action through civil lawsuits. See Kreshik v. Saint Nicholas Cathedral, 363 U.S. 190, 191, 80 S.Ct. 1037, 4 L.Ed.2d 1140 (1960)


Importantly, before the constitutional right to free exercise of religion is implicated, the threshold inquiry is whether the conduct sought to be regulated was "rooted in religious belief." Wisconsin v. Yoder, 406 U.S. 205, 215, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); see Sanders v. Casa View Baptist Church, 134 F.3d 331, 337-38 (5th Cir.1998)

; Destefano v. Grabrian, 763 P.2d 275, 283-84 (Colo.1988). Further, in order to launch a free exercise challenge, it is necessary "to show the coercive effect of the enactment as it operates against [the individual] in the practice of his religion." School Dist. v. Schempp, 374 U.S. 203, 223, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).

If it is demonstrated that the conduct at issue was rooted in religious beliefs, then the court must determine whether the law regulating that conduct is neutral both on its face and in its purpose. See Lukumi Babalu, 508 U.S. at 531, 113 S.Ct. 2217. "[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest." Id. at 533, 113 S.Ct. 2217 (citation omitted).

The State may, however, regulate conduct through neutral laws of general applicability. See id. at 531, 113 S.Ct. 2217. Thus, "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Id. at 531, 113...

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