Tilton v. Marshall

• Citation: 925 S.W.2d 672
• Decision Date: 12 July 1996
• Docket Number: No. 94-1233,94-1233
• Parties: 39 Tex. Sup. Ct. J. 985 Robert TILTON (individually and sued as allegedly d/b/a Robert Tilton Ministries), Word of Faith World Outreach Center, Inc. (a dissolved corporation), and Word of Faith World Outreach Center Church et al., Relators, v. The Honorable John McClellan MARSHALL, Judge, Respondent.
• Court: Supreme Court of Texas

Page 672

925 S.W.2d 672

39 Tex. Sup. Ct. J. 985

Robert TILTON (individually and sued as allegedly d/b/a

Robert Tilton Ministries), Word of Faith World Outreach

Center, Inc. (a dissolved corporation), and Word of Faith

World Outreach Center Church et al., Relators, v. The Honorable John McClellan MARSHALL, Judge, Respondent.

No. 94-1233.

Supreme Court of Texas.

Argued March 21, 1995.

Decided July 12, 1996.

Robert B. Wellenberger, Rhonda Johnson Byrd, David M. Taylor, Dallas, for Relators.

Dana C. Bowen, Tulsa, OK, Darrell Minter, Gary L. Richardson, Dallas, for Respondent.

PHILLIPS, Chief Justice, delivered the opinion of the Court on Motion forRehearing as to Sections II and III and portions of Section I, in which GONZALEZ, HECHT, SPECTOR, OWEN, and ABBOTT, Justices, join and a plurality opinion as to the remaining portions of Section I in which SPECTOR, OWEN, and ABBOTT, Justices, join.

We grant relators' motion for rehearing in part and withdraw our prior opinions and judgment, and substitute the following opinion in its place. ¹

Based on their constitutional rights, relators complain that the trial court abused its discretion in refusing to dismiss the claims of the plaintiffs in the underlying suit, or, at least, in ordering the production of certain allegedly protected documents. Because we conclude that the trial court has abused its discretion in refusing to dismiss the plaintiffs' claims of intentional infliction of emotional distress and related conspiracy claims, and in ordering the production of certain documents which are therefore irrelevant, we conditionally grant a writ of mandamus. We decline to grant writ against the trial judge for refusing to dismiss the plaintiffs' claims of fraud and conspiracy as related to fraud.

FACTS

The underlying suit involves claims by real parties in interest Curtis High, Patsy High, Andrea Johnson, and Mary Elizabeth Turk (collectively, "plaintiffs") against Robert Tilton, Word of Faith World Outreach Center Church, Inc., and Word of Faith World Outreach Center Church (collectively, "Tilton"). Tilton is now the principal pastor of Word of Faith World Outreach Center Church near Dallas, Texas. In June 1993, plaintiffs sued Tilton and the two named church entities along with several other defendants, alleging fraud, conspiracy, and intentional infliction of emotional distress. ²

Plaintiffs became aware of Tilton through his television programs about nine years ago. Patsy High, distraught over losing custody of her children, became convinced that Tilton could help her recover them. An avid viewer of Tilton's broadcasts, she and her husband Curtis sent him written prayer requests, donated more than $15,000 to him, and eventually joined his church. Johnson, a physically disabled welfare recipient, also contributed financially to Tilton, made prayer requests, and joined his church as a result of his television programs. Turk began watching Tilton's evangelistic broadcasts, particularly those about faith healing, while caring for her ailing husband. Suffering herself from severe physical pain of unknown causes, Turk contacted Tilton's "prayer line" to make a $1,000 donation to his church. Tilton sent her various mailings, along with a "prayer cloth" to place on the parts of her body that were in pain or needed healing. These mailings stated that Tilton had personally anointed the prayer cloth with convalescent power. Turk later donated nearly $500 more to Tilton, forgoing medical treatment for her pain. When her pain grew worse, Turk consulted a doctor and discovered she was terminally ill with rectal cancer. Turk is now deceased, and Dr. Toni R. Turk and Vicki Crenshaw are prosecuting her claims on behalf of her estate.

Plaintiffs allege, among other things, that Tilton represented "through ... televised programs, ... [a telephone] prayer line, and ... mailings, including those viewed by and received by Plaintiffs," that if they called the prayer line and made a "monetary vow or mail[ed] a monetary donation to Robert Tilton Ministries" with a prayer request included, "Tilton will personally and actually read, touch and pray over each of these requests and that thereby, the one making the vow and request will receive whatever is requested." ³ Plaintiffs claim that Tilton made these and other representations in bad faith and that the representations were both fraudulent and intentional infliction of emotional distress.

During discovery, plaintiffs served Tilton with a subpoena duces tecum requesting, among other documents, "[r]ecords identifying the entities and/or charities that Robert Tilton has tithed to during the seven (7) years next preceding this request, and the amount thereof." Tilton moved to quash the deposition. After two hearings, the trial court issued an order requiring Tilton to produce these tithing records "on or before the 1st day of December, 1994...."

Tilton then filed an emergency motion for leave to file petition for writ of prohibition or writ of mandamus with this Court. ⁴ In it, Tilton requested the Court to "issue a writ of mandamus directing [the trial court] ... to reverse and vacate [its] ... order ... compelling production of religious tithing records; and issue a writ ... directing [the trial court] ... to exercise no further jurisdiction over this case, except to enter an order dismissing all claims against" Tilton. We granted leave and stayed both the trial court's production order and all proceedings in the underlying suit pending our decision.

Tilton argues that the trial court abused its discretion by refusing to dismiss the underlying action and by ordering the production of his tithing records. He claims that the Texas Constitution, the United States Constitution, and the federal Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§ 2000bb-2000bb-4 (Supp. V 1993), ⁵ bar plaintiffs' causes of action against him and prohibit the trial court from ordering him to produce his tithing records. Plaintiffs respond that neither the trial court's discovery order nor its refusal to dismiss the underlying suit is an abuse of discretion justifying interlocutory relief.

I.

A.

While Article I, Section 6 of the Texas Constitution and the First Amendment to the United States Constitution afford broad protection to the free exercise of religion, they do not necessarily bar all claims which may touch on religious conduct. The authors of the interpretive commentary to the provision of the Texas Constitution protecting freedom of worship state that

the free exercise of religion does not go so far as to be inclusive of actions which are in violation of social duties or subversive of good order. Although freedom to believe may be said to be absolute, freedom of conduct is not and conduct even under religious guise remains subject to regulation for the protection of society.

TEX. CONST. art. I, § 6 interp. commentary (Vernon 1984); see also Lide v. Miller, 573 S.W.2d 614, 614-15 (Tex.Civ.App.-Texarkana 1978, no writ). The federal constitution similarly distinguishes between the freedom to believe, which is absolute, and the freedom to act, which "remains subject to regulation for the protection of society." Cantwell v. Connecticut, 310 U.S. 296, 303-04, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). ⁶ The Free Exercise Clause never has immunized clergy or churches from all causes of action alleging tortious conduct. See Van Schaick v. Church of Scientology of California, Inc., 535 F.Supp. 1125, 1142 (D.Mass.1982); see also Molko v. Holy Spirit Ass'n for the Unification of World Christianity, 46 Cal.3d 1092, 252 Cal.Rptr. 122, 133, 762 P.2d 46, 57 (1988), cert. denied, 490 U.S. 1084, 109 S.Ct. 2110, 104 L.Ed.2d 670 (1989) ("[R]eligious groups may be held liable in tort for secular acts ... [and] in appropriate cases courts will recognize tort liability even for acts that are religiously motivated."); Murphy v. International Soc'y of Krishna Consciousness of New England, Inc., 409 Mass. 842, 571 N.E.2d 340, 346 (1991), cert. denied, 502 U.S. 865, 112 S.Ct. 191, 116 L.Ed.2d 152 (1991) (noting that the freedom to act on religious beliefs does not enjoy the same protection as the freedom to believe certain principles); Meroni v. Holy Spirit Ass'n for the Unification of World Christianity, 119 A.D.2d 200, 506 N.Y.S.2d 174, 176 (N.Y.App.Div.1986) ("[A] church may be held liable for intentional tortious conduct on behalf of its officers or members, even if that conduct is carried out as part of the church's religious practices.").

Thus when a plaintiff's suit implicates a defendant's free exercise rights, the defendant may assert the First Amendment as an affirmative defense to the claims against him. See Paul v. Watchtower Bible & Tract Soc'y of New York, Inc., 819 F.2d 875, 879 (9th Cir.1987), cert. denied, 484 U.S. 926, 108 S.Ct. 289, 98 L.Ed.2d 249 (1987); see also New York Times Co. v. Sullivan, 376 U.S. 254, 282-83, 84 S.Ct. 710, 727, 11 L.Ed.2d 686 (1964); Carrieri v. Bush, 69 Wash.2d 536, 419 P.2d 132, 137 (1966); McNamara v. Freedom Newspapers, Inc., 802 S.W.2d 901, 904 (Tex.App.-Corpus Christi 1991, writ denied). One seeking an exemption based on faith from a facially neutral, generally applicable statute, regulation, or common law principle must first demonstrate to the court that the application thereof would substantially burden his or her free exercise of religion. See RFRA, 42 U.S.C. § 2000bb-1; Sherbert v. Verner, 374 U.S 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963); People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813, 816 (1964); TRIBE, AMERICAN CONSTITUTIONAL LAW § 14-12, at 1242 (2d ed. 1988). If this showing is made, the government must show to the court that granting the exemption would significantly hinder a compelling state interest. See RFRA, 42 U.S.C. § 2000bb-1; Sherbert, 374 U.S. at 403, 83 S.Ct. at 1793; TRIBE, supra, § 14-12 at 1242.

Before a court can determine whether a law or...