31-0 Respondent's Brief Filed

October 29th, 2021

Excerpt:

RESPONDENT’S BRIEF IN OPPOSITION TO THE SECOND APPLICATION FOR SUMMARY RELIEF

BACKGROUND

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. 23 Pa. C.S. § 6311(a)(6). Relevant to this litigation, a member of the clergy is only relieved of the duty to make a report of suspected child abuse if the member of the clergy learns of the suspected child abuse during a confidential communication. Id. § 6311.1(b)(1). In order to exemplify “confidential communication,” the General Assembly incorporated a reference in the CPSLto Section 5943 of the Judicial Code, which states:

 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. 

42 Pa. C.S. § 5943 (hereinafter the “clergy-communicant privilege”). The clergy-communicant privilege 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 id. Petitioner, the Ivy Hill Congregation of Jehovah’s Witnesses, is a religious entity located in Philadelphia, Pennsylvania. (Sec. Appl. for Relief ¶¶ 69, 71). Jehovah’s Witnesses, including Petitioner, believe any congregant who commits a serious sin requires spiritual counsel and assistance from the elders of the congregation. (Id. ¶ 45). To obtain spiritual counsel and assistance, congregants must disclose or confess private and sensitive information to elders. (Id. ¶¶ 46, 48).

Although Jehovah’s Witnesses require a congregant to confess to three or more elders as part of the repentance and reconciliation with God, it is their belief that the principles of privacy and confidentiality apply with equal force to each communication regardless of the fact that the communication is with multiple elders. (Id. ¶¶ 51-52).

Respondent, the Department of Human Services, is the Commonwealth agency charged with administering and overseeing the implementation of the CPSL. (Id. ¶ 81). More specifically, the Department is administratively tasked with, among other things: promulgating regulations necessary to implement the CPSL; maintaining a toll-free hotline for reporting abuses and a statewide database of protective services; and, providing notice of reports of suspected child abuse to appropriate county agencies and law enforcement to conduct investigations and initiate enforcement actions. (See id. ¶ 82); see also Resp’t Ex. A1 ¶ 10.

The CPSL is a statutory scheme governing the reporting and investigation of child abuse. (Id. ¶ 77). If a person, such as a member of the clergy, is obligated to report suspected child abuse, a written report must be submitted to the Department. (Id. ¶ 79); see also Resp’t Ex. A ¶ 13. Section 6319 of the CPSL provides a criminal offense if a person who is required to report a case of suspected child abuse fails to do so. (See id. ¶ 80 citing 23 Pa. C.S. § 6319).

   Footnote: 1 Attached and incorporated herein as Respondent’s Exhibit A is a true and correct copy of the unsworn affidavit of Amanda Dorris, Director of the Bureau of Policy, Programs and Operations for the Office of Children, Youth and Families

Notably, the only entities permitted to investigate or bring charges against a person for failing to report child abuse are law enforcement officials, not the Department. (See id. ¶ 83(g)); see also Resp’t Ex. A ¶ 14. As it relates to elders at Ivy Hill Congregation, those relevant officials would be the Philadelphia District Attorney, because the congregation is located in Philadelphia or the State Attorney General. (See Sec. Appl. for Relief Ex. Y at 11, Request No. 14).

As permitted by the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-7541, Petitioner seeks a declaration against Respondent to settle whether their elders are deemed members of clergy, as encompassed by the clergy-communicant privilege. (See id. at 4-5, Request No. 6). This is the only narrow declaration that is being sought because Petitioner is “absolutely not seeking a declaration . . . that some per se exemption to reporting applies[.]” (See id.) (citing Pet’s Br. in Opp. to P.O.s at 22) (emphasis in original).2

Alternatively, if the Court determines that the elders at Ivy Hill are not members of the clergy as encompassed by the clergy-communicant privilege, on the grounds that “members other than the leader [] are deemed clergymen or ministers” in the Jehovah’s Witnesses’ faith, Petitioner requests for the Court to declare this portion of the clergy-communicant privilege unconstitutional and sever it from the remainder. (See Sec. Appl. for Relief at 1-2).

Footnote: 2 Although the Second Application for Relief suggests a broader form of relief sought when describing the requested declaration as one that would entitled the elders of Ivy Hill to the protections afforded by the clergymen privilege (Sec. App. for Relief at 1-2), Petitioner acknowledged during discovery that despite its nuances in word choice, its request for relief has been consistent – a narrow declaration that its elders are “clergymen” under Section 5943 so that when circumstances warrant, the elders may relieve themselves of their duty as mandatory reporters. (Sec. App. for Relief at 1-2; see also Ex. Y at 4-5); see also Mem. Op. at 20-21 (“this case pertains only to who – specifically, Petitioner’s elders – may assert the privilege, not what content may be protected.”)

Because the Court is prevented from opining as to whether any given communication to an elder at Ivy Hill may otherwise meet the “in the course of his duties” and “secretly and in confidence” provisions of clergy-communicant privilege, it would be improper for this Court to broadly declare that the elders at Ivy Hill are “entitled to the protections afforded by the clergymen privilege” based upon the record before us.

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