{"id":2994,"date":"2023-07-27T20:19:32","date_gmt":"2023-07-27T20:19:32","guid":{"rendered":"http:\/\/jwchildabuse.org\/xqllht\/document\/31-0-respondents-brief-filed\/"},"modified":"2023-07-29T17:38:36","modified_gmt":"2023-07-29T17:38:36","slug":"31-0-respondents-brief-filed","status":"publish","type":"dlp_document","link":"https:\/\/jwchildabuse.org\/xqllht\/document\/31-0-respondents-brief-filed\/","title":{"rendered":"31-0 Respondent’s Brief Filed"},"content":{"rendered":"

October 29th, 2021<\/strong><\/p>\n

Excerpt:<\/em><\/p>\n

RESPONDENT\u2019S BRIEF IN OPPOSITION TO THE SECOND APPLICATION FOR SUMMARY RELIEF<\/strong><\/p>\n

 <\/p>\n

BACKGROUND<\/strong><\/p>\n

The Child Protective Services Law (hereinafter the \u201cCPSL\u201d), 23 Pa. C.S. \u00a7\u00a7 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. \u00a7 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. \u00a7 6311.1(b)(1). In order to exemplify \u201cconfidential communication,\u201d the General Assembly incorporated a reference in the CPSLto Section 5943 of the Judicial Code, which states:<\/p>\n

\u00a0No 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.\u00a0<\/em><\/p>\n

 <\/p>\n

42 Pa. C.S. \u00a7 5943 (hereinafter the \u201cclergy-communicant privilege\u201d). The clergy-communicant privilege provides that a member of the clergy shall not be compelled, without consent of the disclosing individual, to disclose\u00a0information in any legal proceeding, trial or investigation that was obtained \u201cin the course of his duties\u201d . . . \u201csecretly and in confidence[.]\u201d See id. Petitioner, the Ivy Hill Congregation of Jehovah\u2019s Witnesses, is a religious entity located in Philadelphia, Pennsylvania. (Sec. Appl. for Relief \u00b6\u00b6 69, 71). Jehovah\u2019s Witnesses, including Petitioner, believe any congregant who commits a serious sin requires spiritual counsel and assistance from the elders of the congregation. (Id. \u00b6 45). To obtain spiritual counsel and assistance, congregants must disclose or confess private and sensitive information to elders. (Id. \u00b6\u00b6 46, 48).<\/p>\n

Although Jehovah\u2019s 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. \u00b6\u00b6 51-52).<\/p>\n

Respondent, the Department of Human Services, is the Commonwealth agency charged with administering and overseeing the implementation of the CPSL. (Id. \u00b6 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. \u00b6 82); see also Resp\u2019t Ex. A1 \u00b6 10.<\/p>\n

The CPSL is a statutory scheme governing the reporting and investigation of child abuse. (Id. \u00b6 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. \u00b6 79); see also Resp\u2019t Ex. A \u00b6 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. \u00b6 80 citing 23 Pa. C.S. \u00a7 6319).<\/p>\n

\u00a0 \u00a0Footnote: 1 Attached and incorporated herein as Respondent\u2019s 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<\/em><\/p>\n

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. \u00b6 83(g)); see also Resp\u2019t Ex. A \u00b6 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).<\/p>\n

As permitted by the Declaratory Judgments Act, 42 Pa. C.S. \u00a7\u00a7 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 \u201cabsolutely not seeking a declaration . . . that some per se exemption to reporting applies[.]\u201d (See id.) (citing Pet\u2019s Br. in Opp. to P.O.s at 22) (emphasis in original).2<\/p>\n

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 \u201cmembers other than the leader [] are deemed clergymen or ministers\u201d in the Jehovah\u2019s Witnesses\u2019 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).<\/p>\n

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 \u2013 a narrow declaration that its elders are \u201cclergymen\u201d 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 (\u201cthis case pertains only to who \u2013 specifically, Petitioner\u2019s elders \u2013 may assert the privilege, not what content may be protected.\u201d) <\/em><\/p>\n

Because the Court is prevented from opining as to whether any given communication to an elder at Ivy Hill may otherwise meet the \u201cin the course of his duties\u201d and \u201csecretly and in confidence\u201d provisions of clergy-communicant privilege, it would be improper for this Court to broadly declare that the elders at Ivy Hill are \u201centitled to the protections afforded by the clergymen privilege\u201d based upon the record before us.<\/p>\n

[Download the PDF document to read the remainder of this court filing]<\/p>\n","protected":false},"excerpt":{"rendered":"

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