Paul v. Watchtower Bible and Tract Soc. of New York, Inc.

• Decision Date: 10 June 1987
• Docket Number: No. 85-4012,85-4012
• Citation: 819 F.2d 875
• Parties: , 56 USLW 2007 Janice PAUL, a/k/a/ Janice Perez, Plaintiff-Appellant, v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC., Defendants-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 875

819 F.2d 875

93 A.L.R.Fed. 737, 56 USLW 2007

Janice PAUL, a/k/a/ Janice Perez, Plaintiff-Appellant, v. WATCHTOWER BIBLE AND TRACT SOCIETY OF NEW YORK, INC.,

Defendants-Appellee.

No. 85-4012.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1986.

Decided June 10, 1987.

Robert A. Castrodale, Coulee, Wash., for the plaintiff/appellant.

Gregory J. Arpin, Spokane, Wash., for the defendant/appellee.

Before WRIGHT, TANG and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Janice Paul, a former member of the Jehovah's Witness Church, appeals from the grant of summary judgment in favor of defendants, the corporate arms of the Governing Body of Jehovah's Witnesses. Paul contends that she is being "shunned" by adherents of the Jehovah's Witness faith. She initially filed suit in state court, setting forth various tort claims. Defendants removed the action on the ground of diversity. Because the practice of shunning is a part of the faith of the Jehovah's Witness, we find that the "free exercise" provision of the United States Constitution and thus of the Washington State Constitution precludes the plaintiff from prevailing. The defendants have a constitutionally protected privilege to engage in the practice of shunning. Accordingly, we affirm the grant of summary judgment, although for reasons different from those of the district court. See generally Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I. Facts

Janice Paul was raised as a Jehovah's Witness. Her mother was very active in the Church and, from the age of four, Paul attended church meetings. In 1962, when Paul was 11 years old, her mother married the overseer of the Ephrata, Washington congregation of Jehovah's Witnesses. In 1967, Paul officially joined the Witnesses and was baptized.

According to Paul, she was an active member of the congregation, devoting an average of 40 hours per month in door-to-door distribution of the Witnesses' publications. In addition to engaging in evening home bible study, she attended church with her family approximately 20 hours per month. She eventually married another member of the Jehovah's Witnesses.

In 1975, Paul's parents were "disfellowshiped" from the Church. According to Paul, her parents' expulsion resulted from internal discord within their congregation. The Elders of the Lower Valley Congregation told Paul that she and her husband should not discuss with other members their feeling that her parents had been unjustly disfellowshiped. That advice was underscored by the potential sanction of her own disfellowship were she to challenge the decision.

Sometime after the Elders' warning, Paul decided that she no longer wished to belong to the congregation, or to remain affiliated with the Jehovah's Witnesses. In November 1975, Paul wrote a letter to the congregation withdrawing from the Church.

The Witnesses are a very close community and have developed an elaborate set of rules governing membership. The Church has four basic categories of membership, non-membership or former membership status; they are: members, non-members, disfellowshiped persons, and disassociated persons. "Disfellowshiped persons" are former members who have been excommunicated from the Church. One consequence of disfellowship is "shunning," a form of ostracism. Members of the Jehovah's Witness community are prohibited--under threat of their own disfellowship--from having any contact with disfellowshiped persons and may not even greet them. Family members who do not live in the same house may conduct necessary family business with disfellowshiped relatives but may not communicate with them on any other subject. Shunning purportedly has its roots in early Christianity and various religious groups in our country engage in the practice including the Amish, the Mennonites, and, of course, the Jehovah's Witnesses.

"Disassociated persons" are former members who have voluntarily left the Jehovah's Witness faith. At the time Paul disassociated, there was no express sanction for withdrawing from membership. In fact, because of the close nature of many Jehovah's Witness communities, disassociated persons were still consulted in secular matters, e.g. legal or business advice, although they were no longer members of the Church. In Paul's case, for example, after having moved from the area, she returned for a visit in 1980, saw Church members and was warmly greeted.

In September 1981, the Governing Body of Jehovah's Witnesses, acting through the defendants--Watchtower Bible and Tract Society of Pennsylvania, Inc., and the Watchtower Bible and Tract Society of New York, Inc.--issued a new interpretation of the rules governing disassociated persons. The distinction between disfellowshiped and disassociated persons was, for all practical purposes, abolished and disassociated persons were to be treated in the same manner as the disfellowshiped. The September 15, 1981 issue of The Watchtower, an official publication of the Church, contained an article entitled "Disfellowshiping--how to view it." The article included the following discussion:

THOSE WHO DISASSOCIATE THEMSELVES

... Persons who make themselves 'not of our sort' by deliberately rejecting the faith and beliefs of Jehovah's Witnesses should appropriately be viewed and treated as are those who have been disfellowshiped for wrongdoing.

The Watchtower article based its announcement on a reading of various passages of the Bible, including 1 John 2:19 and Revelations 19:17-21. The article noted further that "[a]s distinct from some personal 'enemy' or worldly man in authority who opposed Christians, a ... disassociated person who is trying to promote or justify his apostate thinking or is continuing in his ungodly conduct is certainly not one to whom to wish 'Peace' [understood as a greeting]. (1 Tim. 2:1, 2)." Finally, the article stated that if "a Christian were to throw in his lot with a wrongdoer who ... has disassociated himself, ... the Elders ... would admonish him and, if necessary, 'reprove him with severity.' " (citing, inter alia, Matt. 18:18, Gal. 6:1, Titus 1:13).

Three years after this announcement in The Watchtower, Paul visited her parents, who at that time lived in Soap Lake, Washington. There, she approached a Witness who had been a close childhood friend and was told by this person: "I can't speak to you. You are disfellowshiped." Similarly, in August 1984, Paul returned to the area of her former congregation. She tried to call on some of her friends. These people told Paul that she was to be treated as if she had been disfellowshiped and that they could not speak with her. At one point, she attempted to attend a Tupperware party at the home of a Witness. Paul was informed by the Church members present that the Elders had instructed them not to speak with her.

Upset by her shunning by her former friends and co-religionists, Paul, a resident of Alaska, brought suit in Washington State Superior Court alleging common law torts of defamation, invasion of privacy, fraud, and outrageous conduct. Defendants, Watchtower Bible and Tract Associations, removed the action to federal court pursuant to 28 U.S.C. Sec. 1441 (1982). Watchtower moved to dismiss for lack of subject matter jurisdiction and for failure to state a claim under Washington law. Fed.R.Civ.P. 12(b)(1) & (6). In the alternative, Watchtower sought summary judgment. Fed.R.Civ.P. 56(b).

The district court denied the 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and the 12(b)(6) motion to dismiss for failure to state a claim, but granted the motion for summary judgment. The court ruled that it had jurisdiction over the case because the state court properly had jurisdiction originally. See Salveson v. Western States Bankcard Ass'n, 731 F.2d 1423, 1431 (9th Cir.1984). The court also held that Paul's affidavits did not set forth facts that would establish a prima facie case for relief. Moreover, the court ruled that even if the practice of shunning was actionable, the court was prohibited from ruling on the issue on the ground of ecclesiastical abstention. That doctrine prohibits courts from determining issues of canon law. See generally Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976). ¹

II. The Plaintiff's Cause of Action

Janice Paul seeks relief against the Church and several Church officials under Washington state law and pleads various causes of action in tort. She claims in essence that the practice of shunning invades interests that the state does or should protect through its tort law.

The case is properly before the federal courts because of our diversity jurisdiction. See 28 U.S.C. Secs. 1332 & 1447. When federal courts sit in diversity, we apply state law. Erie R.R. v. Thompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Our task is complicated by the fact that there are no Washington cases considering whether a cause of action in tort exists against a church for "shunning" a former member or for engaging in comparable religious practices, although the applicability of state tort law to church practices has been the subject of recent litigation in other jurisdictions. See Annotation, Liability of Religious Association for Damages for Intentionally Tortious Conduct in Recruitment, Indoctrination, or Related Activity, 40 ALR 4th 1062 (1985); Miller v. Catholic Diocese of Great Falls, 728 P.2d 794 (Mont.1986).

We note at the outset that in this case the actions of Church officials and members were clearly taken pursuant to Church policy. Cf. Van Schaick v. Church of Scientology of California, 535 F.Supp. 1125, 1142 (D.Mass.1982) (noting plaintiff's "burden to show that the actions taken against her by individual church members were taken pursuant to some Church policy, practice or directive"). Although shunning is intentional, the activity is not malum in...