14-0 Respondent's Brief Filed
October 2nd, 2020
[This is a 22-page document. Download the PDF to read the entire Brief]
RESPONDENT’S BRIEF IN OPPOSITION TO THE APPLICATION FOR SUMMARY RELIEF
INTRODUCTION
Respondent, the Pennsylvania Department of Human Services (hereinafter “Department” or “Respondent”), through counsel, respectfully submits this Brief in Opposition to the Application for Summary Relief (hereinafter the “Application”) filed by Petitioner Ivy Hill Congregation of Jehovah’s Witnesses (hereinafter “Ivy Hill” or “Petitioner”). Respondent requests that the Application either be stayed pending resolution of pending objections or be dismissed in its entirety. The Child Protective Services Law (hereinafter the “CPSL”), 23 Pa. C.S. §§ 6301, et seq., was enacted to encourage a more complete reporting of suspected child abuse. Under the CPSL, various persons, such as members of the clergy, are identified as mandatory reporters of suspected child abuse. The only exception to mandatory reporting applicable for the purposes of this litigation is when the disclosure of suspected abuse occurs as part of a confidential communication. Section 5943 of the Judicial Code provides that a member of the clergy shall not be compelled, without consent of the disclosing individual, to disclose information in any legal proceeding, trial or investigation that was obtained “in the course of his duties” . . . “secretly and in confidence[.]” See 42 Pa. C.S. § 5943 (hereinafter the “clergy-communicant privilege”).1
Petitioner requests that the Court declare that its seven present elders are members of the clergy as described by the clergy-communicant privilege and are entitled to assert the evidentiary privilege when investigated by law enforcement. Or alternatively, if the Court does not declare the above, to deem the evidentiary privilege to be either facially unconstitutional or unconstitutional as applied to Jehovah’s Witnesses (of which Petitioner is but one congregation), under both the State and Federal Constitutions for violations of the Establishment Clause and Equal Protection provisions and to sever the disclosure exemption from the CPSL. But it is unclear to what end this declaration would provide actual relief. Declaratory relief is not appropriate to adjudicate the validity of a defense to a potential future lawsuit, which is precisely what Petitioner seeks when requesting entitlement to invoke an evidentiary privilege before an investigation or criminal proceeding is even initiated against it.
Footnote: 1 42 Pa. C.S. Section 5943 states in its entirety: 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 conjunction with this Application, pending before the Court are preliminary objections filed by the Respondent to the underlying Petition for Review (hereinafter the “Petition”). Respondent asserts in those objections that the Petition fails both procedurally and substantively and should be dismissed in its entirety. Since objections have been lodged against the Petition, this Application should be stayed pending their resolution. Alternatively, assuming Petitioner overcomes the hurdles identified by the objections, this Application should still be denied because there are material issues of fact in dispute and providing a declaration as to the application of an evidentiary privilege is simply not appropriate when its application is done on a case-by-case basis. For these reasons, Respondent requests that this Honorable Court stay disposition of the Application for Summary Relief, or alternatively, deny it in its entirety.
[This is a 22-page document. Download the PDF to read the entire Brief]
