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Pennsylvania courts weigh whether Jehovah's Witnesses elders must report confessed child abuse


By Nicholas Malfitano

Feb 16, 2024

HARRISBURG – After the Commonwealth Court of Pennsylvania dismissed a petition from a group of Jehovah’s Witnesses nearly two years ago, which argued the confidentiality of their confessions shielded them from being mandatory reporters of child abuse, the Supreme Court of Pennsylvania overruled their colleagues and decided the Commonwealth Court must re-examine the action.


In a 24-page memorandum opinion authored by state Supreme Court Chief Justice Debra Todd and handed down Feb. 13, the Court found that their Commonwealth Court contemporaries violated the Coordinate Jurisdiction Rule – which states “judges of coordinate jurisdiction sitting in the same case should not overrule each other’s decisions” – by its initial pair of separate findings that Ivy Hill Congregation of Jehovah’s Witnesses did not have proper standing against the Commonwealth’s Department of Human Services, and that a grant of declaratory relief would not terminate the legal controversy.


Todd was joined in the opinion by Supreme Court of Pennsylvania justices Christine Donohue, Kevin M. Dougherty, David N. Wecht and Sallie Updyke Mundy. Justices P. Kevin Brobson and Daniel McCaffery did not participate in the consideration or decision of this matter.


“Appellant is a congregation of approximately 140 individuals in Philadelphia, Pennsylvania, who follow the tenets of the Jehovah’s Witnesses religion. Every Jehovah’s Witnesses congregation is led by a body of elders, which consists of a group of five to seven volunteers. The elders are authorized to hear and respond to a congregant’s confession of sin, and, under their beliefs, are obliged to maintain the confidentiality of confessions. According to appellant, its elders may receive confessions involving child abuse, which would implicate the mandatory reporting requirements of the Child Protective Services Law (CPSL),” Todd said.


“Specifically, the CPSL identifies certain individuals who are deemed to be ‘mandated reporters.’ Mandated reporters are required to make a report of suspected child abuse to the Commonwealth’s Department of Human Services if they have ‘reasonable cause’ to suspect that a child has been a victim of abuse. In addition to doctors and school employees, the list of mandated reporters includes ‘a clergyman, priest, rabbi, minister, Christian Science practitioner, religious healer or spiritual leader of any regularly established church or other religious organization.’ Under Section 6319 of the CPSL, mandated reporters who fail to report a case of suspected child abuse are subject to criminal penalties.”


Furthermore, Section 6311.1(a) of the CPSL specifies that “otherwise-privileged communications between a mandated reporter and a patient or client of the mandated reporter are not privileged if they involve child abuse, and a mandated reporter is not relieved of the duty to make a report of suspected child abuse.”


However, Section 6311.1(b) of the CPSL, which often is referred to as the “clergyman privilege,” specifies that “confidential communications made to a member of the clergy are protected pursuant to Section 5943 of the Judicial Code.”


That statute says: “No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self-ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.”


In May 2020, Ivy Hill asked the Commonwealth Court for clarification, under the Declaratory Judgments Act (DJA), as to whether or not it was bound by the tenets of Pennsylvania’s CPSL, claiming that “uncertainty as to whether its elders fall within the class of individuals covered by the clergyman privilege negatively impacts its ability to practice the Jehovah’s Witnesses faith.”


“Accordingly, in Count I of its petition, appellant sought a declaration that its elders are entitled to protection under Section 6311.1(b) of the CPSL and Section 5943 of the Judicial Code because they are ministers of the gospel of a regularly established church, who are neither self-ordained, nor members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers,” Todd stated.


“In Count II of its petition, appellant argued that, in the event the court determined that the clergymen privilege does not apply to its elders, the court should declare Section 5943 unconstitutional, and sever the offending portion of the statute.”


Additionally, Ivy Hill filed an application for summary relief soon afterwards, claiming “the case presented a pure question of law as to whether the clergyman privilege applies to its elders, and that, to the extent the case implicates issues of fact, such facts are not the proper subject of dispute because they relate to the elders’ ecclesiastic functions of the Jehovah’s Witnesses faith.”


In June 2021, the Commonwealth Court unanimously denied Ivy Hill’s application for summary relief (Ivy Hill I).


On Sept. 21, 2021, Ivy Hill filed a motion for summary judgment, again requesting a declaration that its elders are “entitled to invoke the clergyman privilege under Section 6311.1(b) of the CPSL and Section 5943 of the Judicial Code, and, in the event the court determined that Section 5953 does not apply to its elders, that Section 5943 be deemed unconstitutional.”


Eight months later, the Commonwealth Court again unanimously denied Ivy Hill’s motion for summary judgment and ultimately dismissed its petition on May 10, 2022 (Ivy Hill II).


In its May 2022 decision, the Commonwealth Court first recognized that the DJA provides courts with the “power to declare rights, status, and other legal relations whether or not further relief is or could be claimed” and that “whether a court should exercise jurisdiction over a declaratory judgment proceeding is a matter of sound judicial discretion…thus, the granting of a petition for a declaratory judgment is a matter lying within the sound discretion of a court of original jurisdiction.”


Explaining that it has “construed imminent and inevitable litigation as requiring the presence of antagonistic claims,” the Court determined that “imminent and inevitable litigation” does not exist in the instant case because the record “does not establish that DHS opposes, has sued, or threatened to sue [appellant],” and, indeed, DHS “cannot even initiate litigation regarding the CPSL.”


In support of its finding, the Court cited its 1996 decision in Ruszin v. Department of Labor & Industry, Bur. of Workers’ Comp., where it held that the plaintiff could not raise a claim for compensation for total hearing loss before he actually suffered total hearing loss.


“The Court further concluded that a grant of declaratory relief would not terminate the controversy ‘because DHS does not enforce the CPSL,’ and ‘either the Commonwealth or one of its agencies tasked with enforcing the reporting privilege…would address whether [appellant’s] elders are ‘clergymen’ such that they are immune from’ penalties for non-reporting,” Todd said.


“Moreover, the Court reasoned that granting appellant declaratory relief would not terminate the controversy because ‘the CPSL reporting privilege implicates the evidentiary privilege at Section 5943,’ which ‘is not based solely on the clergy’s status, but [on] whether the communication was made in confidence in the context of a penitential or spiritual matter,’ and a court or appropriate agency still would be required to review the communication at issue to determine whether Section 5943 applies in a given instance. Thus, the Court ordered that ‘appellant’s petition for review and motion for summary relief are dismissed for lack of jurisdiction.”


In its present appeal to the Supreme Court of Pennsylvania, Ivy Hill “argued that the Commonwealth Court erred in holding it did not have jurisdiction to address appellant’s petition, and, further, that the Commonwealth Court’s decision and order dismissing appellant’s petition conflicted with its decision in Ivy Hill I, and, so, violated the Coordinate Jurisdiction Rule.”


Additionally, Ivy Hill “asked the [state Supreme] Court to forgo remanding this case to the Commonwealth Court for further proceedings, and instead issue a declaration that its elders may invoke the clergyman privilege to the mandatory reporting requirements of Section 6311 of the CPSL, if they become aware of otherwise-reportable information as a result of hearing a confidential religious confession.”


Departure from the Coordinate Jurisdiction Rule “is allowed only in exceptional circumstances such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed,” according to Todd.


“Upon review, it is evident that the Commonwealth Court’s decision violates the Coordinate Jurisdiction Rule. As discussed above, the Court in Ivy Hill II concluded that DHS was not a proper defendant because the record ‘does not establish that DHS opposes, has sued, or threatened to sue [appellant]’; DHS ‘cannot even initiate litigation regarding the CPSL’; and ‘imminent and inevitable litigation’ requires the presence of ‘antagonistic claims,” Todd stated.


“However, in Ivy Hill I, in the context of addressing DHS’s argument that appellant failed to join indispensable parties, the Court rejected those same concerns, emphasizing that ‘this case is not about the role of the prosecutor in charging a particular mandated reporter; rather, it is about whether the privilege preserved in the CPSL is available to [appellant’s] elders such that there may be occasions where they are not required to report instances of child abuse to DHS. Ultimately, courts, not prosecutors, decide whether a privilege attaches.’ Thus, the Court in Ivy Hill II effectively overruled the Ivy Hill I Court’s determination on this issue.”


Todd continued, “Additionally, the court in Ivy Hill II determined that granting the requested declaratory relief would not terminate the controversy because DHS does not enforce the CPSL, and ‘declaratory relief binding DHS to an interpretation that [appellant’s] elders qualify as ‘clergymen’ would not terminate the ongoing controversy because the declaration would not bind the Commonwealth or its agencies designated to enforce the CPSL.”


“Along these lines, the Ivy Hill II Court further reasoned that, because the CPSL implicates Section 5943, and because application of Section 5943’s clergyman privilege ‘is not based solely on the clergy’s status, but whether the communication was made in confidence in the context of a penitential or spiritual matter,’ it would still be necessary for a trial court or agency to review the specific communication at issue. The Commonwealth Court in Ivy Hill I, however, addressed these identical arguments by DHS and expressly rejected them. Thus, again, the Court in Ivy Hill II disregarded the ruling of the court in Ivy Hill I on the same issue.”


The state Supreme Court justices rejected the DHS’s argument that “the Commonwealth Court in Ivy Hill II did not violate the Coordinate Jurisdiction Rule, because the decisions in Ivy Hill I and Ivy Hill II addressed motions that differed in kind.”


“In the case [at hand], DHS has not demonstrated any change in the law or facts, nor has it demonstrated that the ruling in Ivy Hill I was clearly erroneous. Rather, the Court in Ivy Hill II seemingly justified its refusal to adhere to the rulings of the court in Ivy Hill I as follows: ‘Unlike Ivy Hill I, we are resolving [appellant’s] summary relief motion.” Thus, consistent with our discussion above, we find such reasoning insufficient and so hold that the Court in Ivy Hill II violated the Coordinate Jurisdiction Rule,” Todd said.


“In its final argument, appellant suggests that, notwithstanding the fact that the Commonwealth Court in Ivy Hill II did not reach the underlying legal issues in this case, if this Court concludes that the court below violated the Coordinate Jurisdiction Rule, we should forego remanding the matter to the Commonwealth Court for further consideration, and instead decide, in the first instance, whether appellant’s elders may invoke the clergymen privilege under the CPSL, and, if not, whether Section 5943 is unconstitutional. As appellant recognizes, however, such an approach would be atypical and contrary to our usual practice and procedure. We see no reason to depart from our traditional procedure in this case.”


Thus, the state Supreme Court vacated the Commonwealth Court’s order dismissing appellant’s petition and its motion for summary relief, as the body concluded the lower court’s determinations that the appellant does not have standing, and that a grant of declaratory relief would not terminate the controversy, violated the Coordinate Jurisdiction Rule – and remanded the case to the Commonwealth Court for further proceedings.


Supreme Court of Pennsylvania case 65 MAP 2022


Commonwealth Court of Pennsylvania case 316 MD 2020


From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com


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