Metropolitan News-Enterprise


Friday, September 30, 2005


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Appellate Court Takes Broad View of Priest-Penitent Privilege

Panel Revives Confidentiality Claim in Suit Over Alleged Molestation by Church Leader


By KENNETH OFGANG, Staff Writer/Appellate Courts


A communication between a church congregant and a clergy member need not include the seeking of forgiveness of sin to be protected by the priest-penitent privilege, the Court of Appeal for this district ruled yesterday.

The definition of “penitential communication” in the Evidence Code is broader than, and takes precedence over, the dictionary definition of “penitential,” Presiding Justice Candace Cooper wrote for Div. Eight.

Granting in part a writ of mandate sought by a Methodist church, the court directed that a Los Angeles Superior Court judge reconsider claims that the privilege prohibits disclosure of information being sought by three plaintiffs who claim they were molested by a church youth leader.

The panel said Judge Elizabeth A. White should have determined whether the documents as to which the church claimed the privilege—a letter from the church’s pastor to her supervisor concerning the youth leader’s conduct, plus various documents which the church says were provided “confidentially” to the pastor by others who may have been molested—were penitential communications within the meaning of Evidence Code Sec. 1032 before ruling on whether they were discoverable.

Youth Minister

Mark Calkins, Robert Pugh, and Todd Stocking accuse Gary-Carson Hull of having molested them in the 1970s, when Carson-Hull was a youth minister at a church in Long Beach. The three are suing that church, along with the Walnut Creek United Methodist Church and churches in West Sacramento and Pasadena, claiming that the defendants conspired to cover up the molestations and keep Carson-Hull in the ministry.

 Yesterday’s ruling concerns objections by the Walnut Creek church to interrogatories and requests for production by which the plaintiffs’ attorneys are seeking the identities of persons who reported the molestations to the church or otherwise have information about the “incident.”

 The church objected on grounds of vagueness and attorney-client and priest-penitent privilege. During meet-and-confer discussions, the church acknowledged that three persons had claimed to have been molested by Carson-Hull during the time he was at the church but did not disclose their identities, citing privacy concerns.

 The plaintiffs’ lawyers suggested that a letter be sent to the individuals, asking them whether they objected to disclosure of their identities. The church rejected the suggestion, saying that “correspondence to persons requesting disclosure of the information they entrusted to Pastor [Renae] Fernandez confidentially would breach the relationship of trust and confidence between Pastor Fernandez and these individuals,” and the plaintiffs moved to compel.

In response, the church asserted the clergy-penitent privilege, the right of privacy, and lack of relevance. The plaintiffs replied, among other things, that the privilege did not apply because there was no indication that the individuals who communicated with the pastor were seeking any type of forgiveness.

In a ruling that Cooper called a “non sequitur,” White held that the privilege did not apply because the requests were unambiguous, and ordered further responses.

Prior Rulings

But Cooper noted that under Sec. 1032 and prior Court of Appeal rulings, a communication is considered penitential if it was intended to be confidential and was made to a clergy member who was authorized or accustomed to hear such communications and was required by church doctrine to keep the communication secret.

There is, Cooper noted, no requirement that the communicant be a church member. But the statute does require that the communication not have been made in the presence of a third party, the presiding justice said, noting the possibility that statements within the scope of discovery may have been made at a retreat held by Fernandez with “persons affected by” Carson-Hull, as Fernandez put it in a declaration.

As for the claim that a statement must be in the nature of a confession to be penitential, the presiding justice wrote:

“Any attempt to introduce a confessional element into section 1032 would be contrary to the clear statutory language and the legislative history, which reflects that the Legislature made a conscious decision to eliminate such a requirement.”

Cooper went on to say that if the priest-penitent privilege claim is rejected, formal notice must be given to the third party communicants so that they may assert privacy claims if they wish.

Attorneys on appeal were Katherine K. Freberg for the plaintiff and Scott S. Blackstone of Callahan, McCune & Willis for the church.

The case is Doe 2 v. Superior Court (Calkins), B179588.


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