Valerie Bandstra, Anne Bandstra, Ryan Bandstra and Jason Bandstra v. Covenant Reformed Church ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 16–1078
Filed June 1, 2018
Amended June 4, 2018
VALERIE BANDSTRA, ANNE BANDSTRA, RYAN BANDSTRA,
and JASON BANDSTRA,
Appellants,
vs.
COVENANT REFORMED CHURCH,
Appellee.
Appeal from the Iowa District Court for Marion County, John D.
Lloyd, Judge.
Appellants appeal several summary judgment and discovery
rulings in their civil suit against a religious entity. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Roxanne Barton Conlin of Roxanne Conlin & Associates, P.C.,
Des Moines, for appellants.
Michael W. Thrall of Nyemaster Goode, P.C., Des Moines, and
Frances M. Haas of Nyemaster Goode, P.C., Cedar Rapids, for appellee.
Eugene Volokh of Scott & Cyan Banister First Amendment Clinic
at UCLA School of Law, Los Angeles, California, and Jason D. Walke of
Walke Law, LLC, Waukee, for amicus curiae International Society for
Krishna Consciousness, Inc.
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CADY, Chief Justice.
In this appeal, we address a number of claims within a lawsuit by
two female parishioners and their spouses against a church based on
claims of negligence and defamation involving sexual abuse and
exploitation perpetrated on the women by the church pastor and the
subsequent response by the governing body of the church. The district
court granted summary judgment for the church on all claims except
negligent supervision, but found the negligent-supervision claims
brought by the female parishioners were barred by the statute of
limitations. On appeal, we affirm the district court in part and reverse in
part. We hold the Religion Clauses of our State and Federal
Constitutions bar two of the negligence claims brought against the
church, and the governing statute of limitations bars one parishioner’s
claim of negligent supervision. We further hold the claims of defamation
were properly dismissed by the district court. On remand, we direct the
church to produce certain documents for in camera inspection by the
district court.
I. Factual Background and Proceedings.
A. Covenant Reformed Church. Covenant Reformed Church is a
religiously conservative Dutch Reformed Christian Church located in
Pella, Iowa. The Church is affiliated with the United Reformed Churches
in North America and seeks to “teach and preach the Christian Gospel
according to the Bible and the Doctrinal Standards, namely the Belgic
Confession, the Canons of Dorttrecht and the Heidelberg Catechism, the
Westminster Confession and Catechism.” The Church is organized as a
nonprofit corporation and is governed locally by a Consistory, which is
comprised of a minister of the Word and a Board of Elders.
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The Board of Elders oversees the operations of the church and
serves as both administrative and spiritual leaders. The board is
comprised of sixteen “male confessing members” of the Church who are
elected to serve by the congregation in staggered terms of three years.
The Church does not require elders to complete any formal theological
training or be ordained, and a male congregant need only “meet the
biblical requirements for office and indicate their agreement with the
Form of Subscription” to be deemed qualified to serve.
Members of the Church are expected to submit to the elders with
respect to matters of doctrine and spirituality, although members
understand that they ultimately submit to God. Additionally, when a
baptized member of the United Reformed Churches of North America
makes a profession of faith, they promise to submit to the government of
the Church and to its admonition or discipline should they become
delinquent in either doctrine or in their personal life.
The Church Order of the United Reformed Churches in
North America describes the duties of an elder as follows:
The duties belonging to the office of elder consist of
continuing in prayer and ruling the church of Christ
according to the principles taught in Scripture, in order that
purity of doctrine and holiness of life may be practiced. They
shall see to it that their fellow-elders, the minister(s) and the
deacons faithfully discharge their offices. They are to
maintain the purity of the Word and Sacraments, assist in
catechizing the youth, promote God-centered schooling, visit
the members of the congregation according to their needs,
engage in family visiting, exercise discipline in the
congregation, actively promote the work of evangelism and
missions, and insure that everything is done decently and in
good order.
The minister of the Word is an ordained pastor who “continue[s] in
prayer in the ministry of the Word, administer[s] the sacraments,
catechiz[es] the youth, and assist[s] the elders in the shepherding and
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discipline of the congregation.” In order to serve as a minister of the
Word, a candidate must demonstrate his “thoroughly reformed
theological education,” including
his knowledge of the Holy Scriptures, both in the original
languages and in English translations, of the Three Forms of
Unity, of Christian doctrine, Christian ethics and church
history; of the Church Order, and of his knowledge and
aptitude with regard to the particular duties and
responsibilities of the minister of the Word, especially the
preparation and preaching of sermons.
Further, a candidate’s personal life is examined. Once a minister of the
Word is publically ordained before the congregation, he is “bound to the
service of the churches for life and may change the nature of his labor
only for weighty reasons, upon approval by his supervising council with
the concurring advice of classis.” However, the Church may remove a
minister of the Word if the “pastoral relationship has been irreconcilably
broken, and a minister of the Word or the council of the congregation he
is serving desires to dissolve their pastoral relationship.”
The Board of Elders is responsible for supervising the Church’s
pastor. Supervising a pastor is not a matter of doctrine and is a secular
administrative function of the board. The board supervises the pastor by
(1) “discuss[ing] the preaching of the Word and mak[ing] sure it coincides
with the Holy Bible,” (2) having “meetings twice a month [to] interact with
[the pastor], [and] discuss things that need to be discussed,” and
(3) “go[ing] on what [the board] call[s] house visitation calls and [asking]
the parishioners how the pastor is pastoring them and whether there
[are] concerns or recommendations that [the board] can do to improve
things.”
B. Plaintiffs and Pastor Edouard’s Sexual Exploitation. In
2003, the Church called Patrick Edouard to be its pastor and minister of
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the Word. Edouard was respected and considered a “dynamic” and “very
talented speaker.”
Valerie Bandstra and her husband, Jason, were members of the
Church at the time Edouard arrived. In 2005, Valerie and Jason were
struggling with infertility, which was taking an emotional toll on Valerie.
Upon learning of her struggles, Edouard began making unsolicited phone
calls to Valerie’s cell phone, inquiring into her personal life and fertility.
In 2006, Valerie and Jason were in the process of seeking an
international adoption, and Valerie decided to seek counseling from
Edouard to help her cope. Edouard invited Valerie to comes see him “at
his study,” which was in the basement of his home.
When Valerie arrived for her first counseling session, Edouard
showed her to his study in the basement. Edouard locked the door and
began inquiring into Valerie’s personal struggles. Edouard inquired into
whether Jason was “meeting [her] needs,” then proceeded to grope and
kiss her. The two then engaged in sexual intercourse, and Valerie has
consistently maintained the sex was against her will. Following the
encounter, Edouard continued to call Valerie and insist her husband was
not meeting her needs. He informed Valerie her emotional struggles
stemmed from “sexual frustration” and unhappiness in marriage.
Edouard urged Valerie that he was “protect[ing]” her by helping her
release her sexual energy. Additionally, Edouard urged Valerie that he
believed God brought them together so she could use her good fortune to
help him. Edouard asked for, and Valerie ultimately loaned him,
$70,000.
In October 2009, Valerie’s sister, Patty, confided in Valerie that
Edouard had tried to kiss her during a counseling session. Once Valerie
learned what Edouard had done to her sister, she realized he
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was using his pastoral position and basically the trust that
people put in him as a pastor to counsel and to basically
recruit women to be counseling candidates so he could get
them into a position of trust and vulnerability for the very
purpose of abusing them.
Soon after the conversation, Valerie called Edouard and told him he was
using his position as pastor under the guise of counseling to have sexual
relationships with women. Valerie then broke off contact with Edouard,
although she did not inform the Church or the police of his conduct out
of fear of retribution or not being believed.
Anne Bandstra and her husband, Ryan (Jason’s brother), were also
members of the Church when Edouard was called to be pastor in 2003.
In 2008, Anne was going through a difficult time. She felt overwhelmed
by a recent death in the family, marital problems, and her special needs
child. Anne had been prescribed antidepressant and anxiety
medications, which she was taking.
In April 2008, Edouard contacted Anne and suggested she counsel
with him. Edouard invited Anne to his basement study and locked the
door. He inquired into her personal life, her marital struggles, and
whether she had engaged in premarital sex. Anne left the meeting to
pick up her son, although she felt uneasy about Edouard’s line of
questioning. Edouard then began calling Anne frequently, asking to see
her again. In May, during a counseling session, Edouard grabbed her
and kissed her. Soon, the “counseling” evolved into regular meetings for
Edouard to provide “healing” through sexual activity. Beyond sexual
intercourse, Edouard would aggressively call Anne, sometimes ten to
fifteen times a day.
In May 2010, Edouard informed Anne of his previous interactions
with Valerie and another woman, Sandy. After the conversation, Anne
“started putting all the pieces together very quickly.” She began to see
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“what had happened to Sandy and the abuse there” and could see “what
happened to Valerie, to Patty, to Wanda, to multiple women that [were] in
[her] church.” Anne continued to meet with Edouard until December 10.
On that day, Ryan arrived home and saw Edouard’s vehicle parked
outside the home. Although Ryan did not witness Anne and Edouard
engaging in any sexual activity, he grew suspicious. That evening, Anne
informed Ryan of Edouard’s “counseling.” Ryan then spoke to Jason,
and the two brothers put the stories together and discovered Edouard’s
exploitation.
On December 13, Jason and Ryan met with three elders and
informed them of Edouard’s misconduct with their wives. That same
evening, Edouard came to a Church meeting and one elder, Mr. Hettinga,
questioned him about his conduct with Anne. Edouard admitted to
inappropriate conduct with Anne and voluntarily offered his resignation.
The entire Board of Elders met later that evening and voted to accept
Edouard’s resignation.
C. Church Response to Clergy Abuse Allegations. On
December 15, the elders sent a letter to the entire congregation
explaining they had accepted Edouard’s resignation. The letter stated
Edouard’s “sins are of such a nature that they warrant our acceptance of
[his] resignation,” but did not disclose the nature of Edouard’s
misconduct.
On December 27, Valerie and Anne were called to appear before
the elders. At the meeting, the women were asked to confess their sins
with Edouard and ask for forgiveness, which they did. Valerie maintains
she confessed to “idolatry,” and Anne maintains she did not confess to
any specific sin, although the elders understood the women to have
confessed to “adultery.” The elders granted Valerie and Anne
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forgiveness. On December 29, the Consistory informed the congregation
that it had voted unanimously to institute proceedings to depose
Edouard from the office of minister of the Word.
On January 14, 2011, the Board of Elders sent another letter to
the entire congregation. It stated, in relevant part,
During the past four weeks the Consistory has learned of a
prolonged period of sexual immorality and/or inappropriate
contact between Patrick Edouard and multiple women
congregant members. These members will remain unnamed
by the Consistory and we admonish the congregation that
they remain unnamed by you also. In love for the body of
Christ, we must demonstrate our forgiving love for these
members by being prudent with our speech and persistent in
prayer for us all. We are thankful for those members who
came before the Elders and eagerly desire to remain a part of
us. We whole-heartedly accept them.
Although the letter did not identify Valerie or Anne by name, the
congregation had become aware of which women came forward with
allegations against Edouard.
A few days later, another member of the Church, Julie Hooyer,
wrote to the elders and urged the elders to refrain from blaming
Edouard’s victims or referring to the misconduct as “affairs.” Hooyer, a
social worker, explained that blaming the women for Edouard’s clergy
abuse would significantly damage the women, as well as the
congregation as a whole. Hooyer, along with Anne, Ryan, and other
affected church members, soon thereafter attended an elder meeting to
discuss their perspectives. They urged the elders to “form a task force to
inform and counsel the Congregation, and [asked] that [the elders] write
a letter to the Congregation using the terms clergy abuse and victims
rather than adultery.” The elders responded by asking Hooyer to submit
her suggestions for the letter. After the members left the meeting, the
elders discussed their ideas and noted “the perspective and suggestions
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had very little Biblical or theological content or viewpoint.” The elders
ultimately decided it was best to “request guidance from a Christian
psychologist or an attorney.”
Following the meeting, Hooyer indeed sent some suggested
language for a congregation letter to the elders. The elders declined to
send her letter, “due in part to recommendations from law enforcement
officials” and because they “felt the concepts she suggested were not
necessarily Biblical and that the women involved using these concepts
felt they were totally victims.” In a letter circulated between the elders,
the elders expressed their view that
a false dichotomy is established when it asserts that all
blame is [Edouard’s]. The victims are certainly sinned
against, but they are also sinning. All the parties involved
failed to walk in the light (I John 1) and the women, though
not bearing the same degree of responsibility as does
[Edouard], were certainly responsible for their behavior and
need to be called to repentance for consenting to his
advances and for violating their marital covenant. They
sinned sexually, even though they can rightly in one sense
be denominated as victims of Patrick’s machinations.
Many elders did not view Anne and Valerie’s experiences as rape or
sexual assault, and some even questioned whether Edouard engaged in
any misconduct at all. One elder, Mr. Van Mersbergen, purportedly
stated in a meeting that what happened to the women “was not clergy
sexual abuse.” Another elder, Mr. Hartman, stated during a meeting that
“[g]rooming is a word made up by professionals. In reality, it is
temptation. These women fell into temptation and they sinned.” During
a home visitation, another elder, Mr. Van Donselaar, stated, “Our only
wish is that the women would admit what they did was wrong and ask
for forgiveness like Patrick did.” He further explained, “If Edouard goes
to jail, there are four women who should go to jail as well.” On another
occasion, Van Donselaar spoke with Ryan on the phone and informed
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him there was “sin on both sides” and that Edouard’s conduct “was not
clergy sexual abuse.” On yet another occasion, Von Donselaar stated to
other members of the congregation that “Edouard is more repentant than
any of these women will be.”
In the summer of 2011, the elders discussed inviting Dr. Diane
Langberg, an expert in clergy sexual abuse, to consult with the Church.
During the elder meeting, there was a motion to include in the invitation
“the phrase that the women committed . . . and confessed to adultery
with Patrick Edouard and were forgiven at the time of their confessions.”
The elders ultimately requested that Dr. Langberg come to the Church
and “fully support the actions they had taken at that time.”
Dr. Langberg declined, citing the elders’ reluctance to view the women as
victims. In September, the elders again voted to invite Dr. Langberg to
meet with the elders once Edouard’s criminal trial was finished.
Ultimately, Dr. Langberg never visited the Church.
In July of 2012, Valerie and Jason left the Church. Anne and
Ryan followed suit two months later.
D. Edouard’s Criminal Conviction. In the meantime, Edouard
was charged with three counts of sexual abuse in the third degree, in
violation of Iowa Code section 709.4(1) (2011), four counts of sexual
exploitation by a counselor or therapist, in violation of Iowa Code section
709.15(2)(c), and one count of engaging in a pattern or practice of sexual
exploitation by a counselor or therapist, in violation of Iowa Code section
709.15(2)(a). A jury trial began on August 13, 2012. Both Valerie and
Anne testified. Edouard also testified in his defense, maintaining all
sexual activity was consensual, and he never provided mental health
services.
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The jury convicted Edouard of the five sexual exploitation charges
and acquitted him of the three sexual abuse charges. He was sentenced
to five years in prison. We affirmed his case on appeal, concluding in
relevant part that sufficient evidence existed to support a conviction of
sexual exploitation. See State v. Edouard, 854 N.W.2d 421, 439 (Iowa
2014), overruled on other grounds by Alcala v. Marriott Int’l, Inc., 880
N.W.2d 699, 708 & n.3 (Iowa 2016). In rejecting a constitutional
challenge to the sexual exploitation statute, we explained “the
relationships between Edouard and each of the four women did not
involve full and mutual consent. In each case, Edouard used—
misused—his position of authority as a counselor to exploit the
vulnerabilities of his victim.” Id. at 444. We concluded “[t]he
relationships were of a kind where ‘consent might not easily be refused.’ ”
Id. (quoting Lawrence v. Texas, 539 U.S. 558, 578, 123 S. Ct. 2472, 2484
(2003)).
E. Civil Proceedings. On December 7, 2012, Valerie, Anne,
Ryan, and Jason brought a civil suit against Edouard, the Church,
United Reformed Churches in North America, and several named elders.
The plaintiffs subsequently dismissed the claims against United
Reformed Churches in North America and Edouard.
Following a number of amended petitions and voluntary motions to
dismiss, the plaintiffs ultimately allege the Church and elders
(1) negligently declined to invite mental health counselors and clergy
sexual abuse experts to work with the congregation; (2) negligently
blamed the women for their sexual exploitation, causing them severe
emotional harm; (3) negligently investigated Edouard’s misconduct
following plaintiffs’ complaints; (4) negligently supervised and retained
Edouard; and (5) made a number of defamatory statements against Anne
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and Valerie. Throughout the duration of the suit, defense counsel and
plaintiffs’ counsel engaged in a number of discovery disputes, resulting
in the district court reviewing a significant number of documents
in camera and issuing twelve separate discovery rulings.
The district court issued three summary judgment orders. The
first concluded the elders individually were immune from suit under Iowa
Code section 504.901, which grants immunity to “a director, officer, or
member of a [nonprofit] corporation . . . for any action taken or failure to
take any action in the discharge of the person’s duties,” except in four
specific instances. Iowa Code § 504.901 (2013). The court concluded
the elders could not be held liable for any actions taken pursuant to their
duties in governing a nonprofit corporation. The court then found the
doctrine of issue preclusion could not be applied to the question of
whether Valerie or Anne consented to their encounters with Edouard, as
the jury did not specifically find, as an element of the crime of sexual
exploitation, that the women did not consent to the encounters.
In the second order, the district court granted summary judgment
in favor of the Church on the plaintiffs’ defamation claims. The court
found that all but two identified statements were qualifiedly privileged
and could not give rise to a defamation action. The remaining
statements, the court determined, were protected opinion statements
incapable of being proven true or false. Further, the court found that no
statements were made with actual malice, and thus, the plaintiffs could
not overcome the qualified privilege.
In the final order, the district court granted summary judgment in
favor of the Church on all negligence claims, except Ryan and Jason’s
negligent-supervision claims. The court found the First Amendment
barred plaintiffs’ first two negligence claims. Next, the court found that,
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First Amendment concerns notwithstanding, summary judgment was
appropriate for the negligent-investigation claim, as the elders accepted
Edouard’s resignation within hours of hearing of the allegations. Finally,
the court determined that both Anne and Valerie’s negligent-supervision
claims were barred by the statute of limitations, as both women were
aware of Edouard’s misconduct more than two years before filing suit.
Plaintiffs moved for the district court to reconsider its rulings with
respect to their negligence claims. The plaintiffs urged that the district
court did not consider the continuing-violations doctrine, which would
place Anne and Valerie within the statute of limitations. Although the
Church contested whether the issue was preserved, the court
nevertheless reached the issue. The court concluded the record did not
demonstrate that the plaintiffs were incapacitated in bringing an action
against the Church. Further, the court found that Iowa had not adopted
the continuing-violations doctrine, and thus, the court was without
jurisdiction to apply it here.
Plaintiffs appealed, and we retained the case.
II. Standard of Review.
We review a district court’s summary judgment ruling “for
correction of errors at law.” Walderbach v. Archdiocese of Dubuque, Inc.,
730 N.W.2d 198, 199 (Iowa 2007). Summary judgment is proper “if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact.” Id. (quoting Iowa R. Civ. P. 1.981(3)).
When reviewing a district court’s ruling, we view the record in the light
most favorable to the nonmoving party. Id. at 199–200.
“Whether the elements of issue preclusion are satisfied is a
question of law.” Winger v. CM Holdings, L.L.C., 881 N.W.2d 433, 445
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(Iowa 2016) (quoting Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d
17, 22 (Iowa 2012)). We review applications of evidentiary privileges for
correction of errors at law. State v. Richmond, 590 N.W.2d 33, 34 (Iowa
1999). Our review of discovery matters is for an abuse of discretion.
Willard v. State, 893 N.W.2d 52, 58 (Iowa 2017). We will not disturb the
court’s conclusions unless the “ruling ‘rests upon clearly untenable or
unreasonable grounds.’ ” Id. (quoting Jones v. Univ. of Iowa, 836 N.W.2d
127, 139 (Iowa 2013)).
III. Analysis.
A number of issues have been properly raised on appeal for our
review: (1) Whether the Religion Clauses of the United States and Iowa
Constitutions bar plaintiffs’ negligence claims, (2) whether summary
judgment was erroneously granted on plaintiffs’ negligent-investigation
claim, (3) whether the two-year statute of limitations bars Valerie and
Anne’s negligent-supervision claims, (4) whether the district court erred
in dismissing plaintiffs’ defamation claims, (5) whether Edouard’s
criminal conviction permits plaintiffs in this suit to offensively preclude
any argument that the women consented to the encounters, (6) whether
the district court erred in applying the clergy privilege during discovery,
and (7) whether the district court abused its discretion with respect to
the production of numerous identified discovery documents. We
consider each issue in turn.
A. Negligence Claims.
1. Religion Clauses. Both the United States and Iowa
Constitutions instruct that governing bodies “shall make no law
respecting an establishment of religion, or prohibiting the free exercise
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thereof.” U.S. Const. Amend. I; Iowa Const. art. I, § 3. 1 The Free
Exercise Clause preserves “the right to believe and profess whatever
religious doctrine one desires.” Emp’t Div. Dep’t of Human Res. v. Smith,
494 U.S. 872, 877, 110 S. Ct. 1595, 1599 (1990), superseded by statute
on other grounds, Religious Freedom Restoration Act of 1993, Pub. L.
No. 103-141, 107 Stat. 1488. The government therefore
may not compel affirmation of religious belief, punish the
expression of religious doctrines it believes to be false,
impose special disabilities on the basis of religious views or
religious status, or lend its power to one or the other side in
controversies over religious authority or dogma[.]
Id. (citations omitted).
Relatedly, the Establishment Clause “forbids an official purpose to
disapprove of a particular religion or of religion in general.” Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532, 113 S. Ct.
2217, 2226 (1993). The Establishment Clause guards against
“sponsorship, financial support, and active involvement of the sovereign
in religious activity.” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S. Ct.
2105, 2111 (1971) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 668, 90
S. Ct. 1409, 1411 (1970)).
The Supreme Court has “struggled to find a neutral course
between the two Religion Clauses, both of which are cast in absolute
terms, and either of which, if expanded to a logical extreme, would tend
to clash with the other.” Walz, 397 U.S. at 668–69, 90 S. Ct. at 1411.
“The general principle deducible from the First Amendment and all that
has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference with
1Plaintiffshave not asked us to adopt a separate analysis from federal
constitutional precedent.
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religion.” Id. at 669, 90 S. Ct. at 1411–12. “Short of those expressly
proscribed governmental acts there is room for play in the joints
productive of a benevolent neutrality which will permit religious exercise
to exist without sponsorship and without interference.” Id. at 669, 90
S. Ct. at 1412.
Over time, there has been a doctrinal shift in the Supreme Court’s
religious jurisprudence from separatism to neutrality. Separatism
adheres to a “wall of separation between church and State” that instructs
“[n]either a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or groups and vice
versa.” Everson v. Bd. of Educ., 330 U.S. 1, 16, 67 S. Ct. 504, 512 (1947)
(quoting Reynolds v. United States, 98 U.S. 145, 164 (1878) (first quote)).
Neutrality instructs that governments “must be neutral in matters of
religious theory, doctrine, and practice.” Epperson v. Arkansas, 393 U.S.
97, 103–04, 89 S. Ct. 266, 270 (1968). Under this view, “[t]he First
Amendment mandates governmental neutrality between religion and
religion, and between religion and nonreligion.” Id. at 104, 89 S. Ct. at
270.
In Jones v. Wolf, the Supreme Court found that Georgia’s “neutral
principles of law” approach to deciding church-related property disputes
did not run afoul of the Religion Clauses. 443 U.S. 595, 604, 99 S. Ct.
3020, 3026 (1979). The Court explained that Georgia’s approach “relies
exclusively on objective, well-established concepts of trust and property
law familiar to lawyers and judges. It thereby promises to free civil
courts completely from entanglement in questions of religious doctrine,
polity, and practice.” Id. at 603, 99 S. Ct. at 3025. Although the
approach still required courts “to examine certain religious documents,
such as a church constitution,” the Court found “[o]n balance . . . the
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promise of nonentanglement and neutrality inherent in the neutral-
principles approach more than compensates for what will be occasional
problems in application.” Id. at 604, 99 S. Ct. at 3026. Indeed, “[t]he
neutral-principles approach cannot be said to ‘inhibit’ the free exercise of
religion, any more than do other neutral provisions of state law governing
the manner in which churches own property, hire employees, or
purchase goods.” Id. at 606, 99 S. Ct. at 3027.
2. Tort claims and religious entities. The First Amendment plainly
prohibits the state, through its courts, from resolving internal church
disputes that would require interpreting or deciding questions of
religious doctrine. See Serbian E. Orthodox Diocese v. Milivojevich, 426
U.S. 696, 724–25, 96 S. Ct. 2372, 2387–88 (1976) (forbidding judicial
inquiry into whether the church judicatory body properly followed its
own rules of procedure in removing a bishop from office); Presbyterian
Church v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S.
440, 449, 89 S. Ct. 601, 606 (1969) (instructing if an intrachurch
property dispute requires interpreting and weighing church doctrine, a
court cannot intervene; if, however, neutral principles of law can be
applied without determining underlying question of religious doctrine
and practice, a court may intervene); Kedroff v. St. Nicholas Cathedral,
344 U.S. 94, 119–21, 73 S. Ct. 143, 156–57 (1952) (holding state statute
that declared one faction of the Russian Orthodox Church to be the
owner of certain church property an unconstitutional intrusion into
religious decision-making); Bouldin v. Alexander, 82 U.S. (15 Wall.) 131,
139–40 (1872) (finding civil courts have no power to question ordinary
acts of church discipline, requirements for membership, or whether
excommunication is proper in specific cases).
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Yet, when churches dispute with third parties, the question of the
state’s proper role becomes more complex. Third-party disputes with
religious entities often involve matters of compelling state interest, such
as discrimination and sexual abuse. If religious entities are de facto
exempt from most tort liability, then courts may run afoul of the
Establishment Clause by placing religious organizations on a higher
plane than nonreligious entities. Further, the Supreme Court has
explained that courts “do not inhibit free exercise of religion merely by
opening their doors to disputes involving church property. And there are
neutral principles of law . . . which can be applied without ‘establishing’
churches to which property is awarded.” Presbyterian Church, 393 U.S.
at 449, 89 S. Ct. at 606. Courts that navigate the terrain of the Religion
Clauses must therefore work with a scalpel, rather than a machete.
3. Split perspectives. The Supreme Court has offered no direct
guidance on the proper analytical framework for determining whether the
First Amendment prohibits a tort claim against a religious entity.
Although the First Amendment prevents courts from deciding questions
of religious doctrine, state and federal courts are divided as to whether
certain negligence claims actually require courts to interpret or consider
religious principles.
Some state and federal courts have held the First Amendment
categorically prohibits any judicial inquiry into a religious entity’s
operations; as such, an inquiry would necessarily entangle the court with
the church’s religious self-governance. 2
2See, e.g., Roppolo v. Moore, 644 So. 2d 206, 209 (La. Ct. App. 1994) (“[A]ny
inquiry into the policies and practices of the Church Defendants in hiring or
supervising their clergy raises the same kind of First Amendment problems of
entanglement discussed above, which might involve[] the Court in making sensitive
judgments about the propriety of the church Defendants’ supervision in light of their
religious beliefs . . . .” (quoting Schmidt v. Bishop, 779 F. Supp. 321, 332 (S.D.N.Y.
19
In Gibson v. Brewer, the Missouri Supreme Court concluded the
First Amendment barred the plaintiff’s claims alleging negligent hiring,
retention, and supervision of a priest, but did not bar the claim of
intentional failure to supervise. 952 S.W.2d 239, 246–48 (Mo. 1997)
(en banc). With respect to “[q]uestions of hiring, ordaining, and retaining
clergy,” the court found that resolving such claims “necessarily involve[s]
interpretation of religious doctrine, policy, and administration.” Id. at
246–47. Further, the court found such an inquiry “would result in an
endorsement of religion, by approving one model for church hiring,
ordination, and retention of clergy.” Id. at 247. With respect to negligent
supervision, the court again concluded the claim would cause “excessive
entanglement, inhibit religion, and result in the endorsement of one
_______________________
1991))); Swanson v. Roman Catholic Bishop of Portland, 692 A.2d 441, 445 (Me. 1997)
(finding negligent-supervision claims are barred by the First Amendment because
“import[ing] agency principles wholesale into church governance and to impose liability
for any deviation from the secular standard is to impair the free exercise of religion and
to control denominational governance [because p]astoral supervision is an ecclesiastical
prerogative”); Teadt v. Lutheran Church Mo. Synod, 603 N.W.2d 816, 823 (Mich. Ct. App.
1999) (concluding a breach of fiduciary duty claim is essentially a clergy malpractice
claim, as courts would have to inquire into “the legitimacy of [the] plaintiff’s beliefs, the
tenets of the faith insofar as they reflect upon a priest’s ability to act as God’s emissary
and the nature of the healing powers of the church” (alteration in original) (quoting
Langford v. Roman Catholic Diocese of Brooklyn, 677 N.Y.S.2d 436, 440 (N.Y.S. Ct.
1998))); Mulinix v. Mulinix, No. C2–97–297, 1997 WL 585775, at *6 (Minn. Ct. App.
Sept. 22, 1997) (“Carol’s claims for negligent retention and negligent supervision are
fundamentally connected to issues of church governance. Adjudication of these claims
would necessitate inquiry into the church’s motives for not discharging Michael, as well
as how the church investigates and resolves complaints concerning clergy
misconduct.”); Gibson v. Brewer, 952 S.W.2d 239, 247 (Mo. 1997) (en banc) (concluding
“[a]djudicating the reasonableness of a church’s supervision of a cleric—what the
church ‘should know’—requires inquiry into religious doctrine . . . [that] would create
an excessive entanglement, inhibit religion, and result in the endorsement of one model
of supervision”); Schieffer v. Catholic Archdiocese of Omaha, 508 N.W.2d 907, 911 (Neb.
1993) (dismissing a breach of fiduciary duty claim because it is, in essence, a claim of
clergy malpractice); Pritzlaff v. Archdiocese of Milwaukee, 533 N.W.2d 789, 791 (Wisc.
1995) (finding an inquiry into a church’s supervision of its clergy would be “prohibited
by the First Amendment under most if not all circumstances,” as it would require the
court to determine the reasonableness of the church’s decisions in light of their
religious beliefs).
20
model of supervision.” Id. However, the court found the tort of
intentional failure to supervise clergy did not run afoul of the First
Amendment. Id. at 248. Because the claim requires an intent to commit
harm, or the disregard of a known risk, the First Amendment does not
require “[r]eligious conduct intended or certain to cause harm” to be
tolerated. Id.
Conversely, many states have adopted the opposing view and
determined the First Amendment does not require categorical immunity
for religious entities. 3
3See, e.g., Moses v. Diocese of Colo., 863 P.2d 310, 320–21 (Colo. 1993) (en banc)
(“Application of a secular standard to secular conduct that is tortious is not prohibited
by the Constitution. The Supreme Court has not granted churches broad immunity
against being sued in civil courts. Civil actions against clergy members and their
superiors that involve claims of a breach of fiduciary duty, negligent hiring and
supervision, and vicarious liability are actionable if they are supported by competent
evidence in the record.” (Citations omitted.)); Malicki v. Doe, 814 So. 2d 347, 361 (Fla.
2002) (“[I]t appears that the Free Exercise Clause is not implicated in this case because
the conduct sought to be regulated; that is, the Church Defendants’ alleged negligence
in hiring and supervision is not rooted in religious belief. Moreover, even assuming an
‘incidental effect of burdening a particular religious practice,’ the parishioners’ cause of
action for negligent hiring and supervision is not barred because it is based on neutral
application of principles of tort law.” (quoting Lukumi Babalu Aye, 508 U.S. at 531, 113
S. Ct. at 2226)); Bivin v. Wright, 656 N.E.2d 1121, 1124 (Ill. App. Ct. 1995) (permitting a
number of negligence claims, including supervision and retention because “[i]nquiring
into whether the church was negligent in its failure to protect plaintiffs from the sexual
misconduct of its minister may not call into question the church’s religious beliefs or
practices or subject them to analysis or scrutiny”); F.G. v. MacDonell, 696 A.2d 697, 702
(N.J. 1997) (“The First Amendment does not insulate a member of the clergy from
actions for breach of fiduciary duty arising out of sexual misconduct that occurs during
a time when the clergy member is providing counseling to a parishioner.”); Kenneth R. v.
Roman Catholic Diocese of Brooklyn, 654 N.Y.S.2d 791, 796 (App. Div. 1997) (“Religious
entities have some duty to prevent injuries inflicted by persons in their employ whom
they have reason to believe will engage in injurious conduct.”); Smith v. Privette, 495
S.E.2d 395, 398 (N.C. Ct. App. 1998) (“The Plaintiffs’ claim, construed in the light most
favorable to them, instead presents the issue of whether the Church Defendants knew
or had reason to know of Privette’s propensity to engage in sexual misconduct, conduct
that the Church Defendants do not claim is part of the tenets or practices of the
Methodist Church. Thus, there is no necessity for the court to interpret or weigh
church doctrine in its adjudication of the Plaintiffs’ claim for negligent retention and
supervision.” (Citation omitted.)); Byrd v. Faber, 565 N.E.2d 584, 590 (Ohio 1991)
(“While even the most liberal construction of the First Amendment will not protect a
religious organization’s decision to hire someone who it knows is likely to commit
criminal or tortious acts, the mere incantation of an abstract legal standard should not
21
In Malicki v. Doe, the Florida Supreme Court found the First
Amendment did not bar the plaintiff’s negligent hiring and supervision
claims against a church. 814 So. 2d 347, 364 (Fla. 2002). The court
first concluded the church did not allege its hiring or supervision of the
abusive priest was done in accordance with “sincerely held religious
beliefs or practices.” Id. at 361. Because the purportedly tortious
conduct was not grounded in any religious belief or practice, the Free
Exercise Clause was not implicated. Id. Further, the court found that
even if tort liability would burden a particular religious practice, the
Supreme Court has held that the “incidental effect of burdening a
particular religious practice” is permissible if based on “neutral
application of principles of tort law.” Id. (quoting Lukumi Babalu Aye,
508 U.S. at 531, 113 S. Ct. at 2226 (first quote)). With respect to
negligent hiring and supervision, “[t]he core predicate for imposing
liability is one of foreseeability.” Id. at 362. Attaching liability to
foreseeability of harm has a secular purpose, and the primary effect of
tort liability “neither advances nor inhibits religion.” Id. at 364. Thus,
liability would not run afoul of the Establishment Clause, as courts
would abstain from resolving religious doctrinal questions and would
treat religious and nonreligious entities equally. Id. at 364–65.
_______________________
subject a religious organization’s employment policies to state scrutiny. . . . [A] plaintiff
bringing a negligent hiring claim must allege some fact indicating that the religious
institution knew or should have known of the employee’s criminal or tortious
propensities.”); Erickson v. Christenson, 781 P.2d 383, 386 (Or. Ct. App. 1989) (rejecting
a First Amendment challenge to a breach of fiduciary duty and intentional infliction of
emotional distress claims, as the claims rested on a confidential, personal relationship,
rather than a religious relationship); C.J.C. v. Corp. of Catholic Bishop of Yakima, 985
P.2d 262, 277 (Wash. 1999) (en banc) (“The First Amendment does not provide
churches with absolute immunity to engage in tortious conduct. So long as liability is
predicated on secular conduct and does not involve the interpretation of church
doctrine or religious beliefs, it does not offend constitutional principles.”).
22
4. Merits.
a. Negligent response to sexual abuse allegations. The plaintiffs
allege the Church (1) willfully disregarded the advice of professional
counselors and denounced established and accepted mental health
treatment concepts after it learned of the abuse; and (2) ignored any duty
of care it had to the plaintiffs and instead blamed them for their actions,
causing them emotional harm.
To succeed on a claim for negligence, the plaintiffs must show “the
existence of a duty to conform to a standard of conduct to protect others,
a failure to conform to that standard, proximate cause, and damages.”
Estate of Gottschalk v. Pomeroy Dev., Inc., 893 N.W.2d 579, 586 (Iowa
2017) (quoting Thompson v. Kaczinski, 774 N.W.2d 829, 834 (Iowa
2009)). Here, resolving whether the elders breached their duty to the
plaintiffs would result in impermissible entanglement with religion.
Following Edouard’s resignation, the elders sought to help the
congregation move forward and heal. The means by which they chose to
counsel and advise the congregation is outside the purview of the
government. Plaintiffs argue “a reasonable church would seek assistance
for parishioners and not label victims ‘adulteresses.’ ” Yet, that is
precisely the type of determination that the Religion Clauses prohibit.
The elders determined that certain speakers and mental health resources
were outside of their faith. A court cannot dictate what teachings and
services a church offers its parishioners. Nor can we disapprove of the
elders deciding, pursuant to their duty as religious authorities, that the
women would be best healed by simply confessing their “sins.” Because
plaintiffs’ first two negligence claims go to the very heart of religious
decision-making, they are barred by the First Amendment.
23
b. Negligent investigation. Plaintiffs next claim the Church
breached its duty of care by not conducting an investigation into
Edouard’s conduct after plaintiffs disclosed his abuse. We agree with the
district court that First Amendment considerations notwithstanding,
summary judgment is properly granted in favor of the Church. The
elders were informed of Edouard’s criminal conduct on December 13,
2010. A few hours later, they accepted his resignation. While the
Church indeed owed a duty of care to the plaintiffs, the Church acted
immediately and affirmed Edouard’s removal from his office, preventing
Edouard from further using his office to abuse Anne and Valerie.
Accordingly, plaintiffs have not adduced sufficient evidence to generate a
genuine issue of material fact as to whether the Church’s failure to
investigate Edouard’s misconduct was the proximate cause of their
injuries.
c. Negligent supervision.
i. First Amendment viability. To succeed on a negligent-
supervision claim, plaintiffs must demonstrate
(1) the employer knew, or in the exercise of ordinary care
should have known, of its employee’s unfitness at the time
the employee engaged in wrongful or tortious conduct;
(2) through the negligent . . . supervision of the employee,
the employee’s incompetence, unfitness, or dangerous
characteristics proximately caused injuries to the plaintiff;
and
(3) there is some employment or agency relationship between
the employee and the defendant employer.
Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673, 680 (Iowa 2004)
(quoting Stricker v. Cessford Constr. Co., 179 F. Supp. 2d. 987, 1019
(N.D. Iowa 2001)). We first recognized the claims of negligent hiring and
supervision in Godar v. Edwards, in which we explained employers have
“a duty to exercise reasonable care in hiring individuals, who, because of
24
their employment, may pose a threat of injury to members of the
public. . . . [S]uch a claim likewise includes an action for negligent
retention and negligent supervision.” 588 N.W.2d 701, 709 (Iowa 1999).
The crux of a negligent-supervision claim is an employer’s failure
“to exercise ordinary care in supervising the employment relationship so
as to prevent the foreseeable misconduct of an employee from causing
harm to others.” 27 Am. Jur. 2d Employment Relationships § 375, at 885
(2014) (emphasis added). “Conduct that results in harm to a third
person is not negligent or reckless unless there is a foreseeable likelihood
that harm will result from the conduct.” Restatement (Third) of Agency
§ 7.05 cmt. d, at 181 (Am. Law Inst. 2006). In Godar, a student was
sexually abused by a school district’s curriculum director and sued the
school district for negligent hiring, retention, and supervision. 588
N.W.2d at 703–05. We determined summary judgment was properly
granted, as “[t]here [was] no evidence in the record to suggest that the
school district should have been suspicious of [the director’s] contact
with students.” Id. at 709–10.
The Church argues that negligent-supervision claims per se are
barred by the First Amendment, as a court would be called upon to
“[a]djudicat[e] the reasonableness of a church’s supervision of a cleric,”
which is an adjudication that necessarily requires inquiry into religious
doctrine. Gibson, 952 S.W.2d at 247. We disagree.
“Whether [a church] reasonably should have foreseen the risk of
harm to third parties . . . is a neutral principle of tort law.” Malicki, 814
So. 2d at 364. In Smith, the Supreme Court instructed that the “right of
free exercise does not relieve an individual of the obligation to comply
with a ‘valid and neutral law of general applicability on the ground that
the law proscribes (or prescribes) conduct that his religion prescribes (or
25
proscribes).’ ” 494 U.S. at 879, 110 S. Ct. at 1600 (quoting United States
v. Lee, 455 U.S. 252, 263 n.3, 102 S. Ct. 1051, 1058 n.3 (1982)
(Stevens, J., concurring in the judgment)). The United States Court of
Appeals for the Fifth Circuit has further explained, “The First
Amendment does not categorically insulate religious relationships from
judicial scrutiny, for to do so would necessarily extend constitutional
protection to the secular components of these relationships.” Sanders v.
Casa View Baptist Church, 134 F.3d 331, 335–36 (5th Cir. 1998). The
court reasoned that categorical immunity “impermissibly place[s] a
religious leader in a preferred position in our society.” Id. at 336.
While the decision whether to invite certain speakers, or use
certain rhetoric, is protected religious decision-making, reasonable
supervision of an employee is a principle of tort law that applies neutrally
to all employers. Further, the Church confirmed during oral argument
that the Church’s supervision, or lack thereof, was not grounded in any
religious doctrine or teachings. Although the elders and Edouard were
both religious figures, working pursuant to their deeply held faiths, this
status does not “excuse [them] from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate.” Smith, 494
U.S. at 879, 110 S. Ct. at 1600. Indeed, any burden that may result
from imposing a secular duty to inquire into the whereabouts and
potential misconduct of a pastor is no more than an “incidental effect of
a generally applicable” tort principle, which does not offend the First
Amendment. Id. at 878, 110 S. Ct. at 1600.
Moreover, the resolution of questions of foreseeability and
reasonableness will not implicate any Establishment Clause concerns.
To discern whether it was foreseeable that Edouard was engaging in
criminal conduct, a court must determine what the elders knew or
26
should have known. In turn, a court must decide whether the
supervision of Edouard, in light of the foreseeable risks, was reasonable.
A court need not interpret any doctrine, nor otherwise impermissibly
entangle itself with religion, in order to conclude the elders owed a duty
to its parishioners to supervise Edouard. Indeed, failing to hold religious
employers accountable for their failure to supervise their employees
would grant immunity to religious figures, which the state may not do.
Accordingly, we find plaintiffs’ negligent-supervision claims are not
barred by the Religion Clauses.
ii. Statute of limitations. The district court concluded that, First
Amendment limitations aside, both Valerie’s and Anne’s negligent-
supervision claims were barred by the statute of limitations. See Iowa
Code § 614.1(2) (providing the limitations period for personal injury
claims is two years). Plaintiffs allege that the limitations period only
began running once Anne and Valerie knew or should have known they
were victims of Edouard’s scheme and the Church failed to prevent his
misconduct. According to the plaintiffs, the earliest date the women
could have been put on notice was December 10, 2010, when the family
learned of the systemic abuse. In the alternative, plaintiffs ask that we
apply the continuing-violations doctrine and determine that plaintiffs
could not have brought their claims while they remained under the
control of the Church.
Statutes of limitations are commonly justified on judicial efficiency
and fairness grounds and are best understood as “an accommodation of
competing interests.” Borchard v. Anderson, 542 N.W.2d 247, 251 (Iowa
1996).
The plaintiff wishes to have a reasonable time to bring the
suit in order that he [or she] may identify the various acts of
negligence, the parties responsible, and the extent of his [or
27
her] damages. The defendant, on the other hand, seeks to
avoid having to defend against stale claims because
witnesses’ memories may fade or other evidence may be lost.
The limitation period is also designed to bring repose and an
end to the assertion of claims. It must be admitted that in
this area any bright line rule has the potential for providing
a hardship in an individual case.
Id. (alterations in original) (quoting LeBleau v. Dimig, 446 N.W.2d 800,
803 (Iowa 1989)).
The “potential for providing a hardship” is perhaps the most
prevalent in civil claims deriving from traumatic instances of sexual
abuse or exploitation. Id. In Callahan v. State, we discussed the
relationship between childhood sexual abuse and delayed discovery of
the elements of a legal claim. 464 N.W.2d 268, 271 (Iowa 1990).
[T]he term “Post-Traumatic Stress Disorder” (PTSD) is used
to describe the psychological impact of traumatic events on a
person. The disorders resulting from these events may be
either a combination of physical and mental disorders, or
solely a residual mental incapacity continuing after a
physical injury has healed. PTSD can exist even when a
trauma victim has not suffered demonstrable physical
injury. A sexually abused child who suffers from this
disorder may exhibit symptoms of unnatural secrecy,
feelings of helplessness or entrapment, delayed or conflicting
disclosure, retraction, and various phobias. A practical
consequence is that the child may repress or delay disclosing
the sexual abuse until after the pertinent personal injury
statute of limitations has run.
Id. (quoting James Wilson Harshaw III, Comment, Not Enough Time?: The
Constitutionality of Short Statutes of Limitations for Civil Child Sexual
Abuse Litigation, 50 Ohio St. L.J. 753, 756–57 (1989)).
We also noted in Callahan that the legislature had responded to
widespread concerns about the viability of childhood sexual abuse claims
and adopted a specific statutory discovery rule to preserve their claims.
Id. at 272. Although the legislature declined to adopt a corresponding
statute for adult victims of sexual abuse, adult victims are nevertheless
28
aided by application of the discovery rule if they can adduce sufficient
evidence that they discovered the illegality within two years of filing suit,
even if the abuse took place long before.
Under the discovery rule, a victim’s claim will begin to accrue once
she is “aware of the existence of a problem,” even if she does not yet have
a full understanding of the abuse’s ultimate effects. Borchard, 542
N.W.2d at 251. Further, the limitations period begins not with actual
knowledge, but rather once the plaintiff is placed on inquiry notice.
Vossoughi v. Polaschek, 859 N.W.2d 643, 652 n.4 (Iowa 2015). “A party
is placed on inquiry notice when a person gains sufficient knowledge of
facts that would put that person on notice of the existence of a problem
or potential problem.” Id. (quoting Buechel v. Five Star Quality Care, Inc.,
745 N.W.2d 732, 736 (Iowa 2008)).
The nature of Edouard’s sexual exploitation prevented the women
from understanding at the outset that his conduct was illegal. Gary
Schoener, a psychologist who offered an affidavit explaining the impact of
clergy sexual abuse, explained that victims often experience confusion
about what has taken place, difficulty explaining the problem or giving it
a name, shame and guilt following even minor incidents, and fear of
retribution. Thus, plaintiffs argue Valerie and Anne were not on notice
from the outset of the abuse but, rather, when they realized they were
one of many victims and that the Church had done nothing to prevent or
remedy it.
Even under plaintiffs’ proposed understanding, Valerie’s claim
remains outside the limitations window. Edouard initially exploited
Valerie in 2006. Edouard continued to pursue and contact her until
October 2009. In October 2009, Valerie spoke with her sister Patty and
29
learned that Edouard had tried to kiss her during a counseling session.
Valerie explained that the conversation caused her to realize
he was using his pastoral position and basically the trust
that people put in him as a pastor to counsel and to
basically recruit women to be counseling candidates so he
could get them into a position of trust and vulnerability for
the very purpose of abusing them.
Following that realization, she called Edouard and accused him of clergy
sexual abuse “in so many words.” Thus, Valerie knew of Edouard’s
scheme of sexual exploitation in October 2009 and was then placed on
inquiry notice of the elders’ unreasonable supervision of Edouard.
Because Valerie had notice of the elders’ allegedly tortious conduct more
than two years before filing suit, her claim is barred by the statute of
limitations.
Anne’s period of exploitation began in April 2008. The district
court erroneously determined Anne knew the conduct was tortiously
“wrong” from the outset. As explained above, the nature of clergy
misconduct prevents victims from understanding that the behavior is
exploitive and unlawful. Yet, Anne stated in her deposition that in May
2010, Edouard called her and informed her that he had had prior sexual
relationships with other female members of the congregation. After the
phone call, Anne “started putting all the pieces together very quickly.” In
her deposition, Anne stated that at that time, she realized,
When you get out of the control of that man, you can see
what’s going on. . . . You could put all those pieces together,
what had happened to Sandy and the abuse there. You
could see what happened to Valerie, to Patty, to Wanda, to
multiple women that are in our church. . . . It’s so hard to
explain, but when he has that control over all these women’s
minds—he had that over Sandy, he had that over Valerie.
He even had that over Patty and Wanda. He loves that
power.
Q. Okay. Were there other pieces—other things that
you looked to that—that kind of fell into place that you said
30
“Now—Now I see what was going on. Now I see what he was
doing”? A. Yes.
Thus, Anne knew of Edouard’s pattern of using his position to abuse
women in May 2010. This placed her on inquiry notice of the elders’
failure to supervise Edouard properly. Anne’s limitations period,
therefore, began to run in May 2010 for encounters that occurred before
her realization and began running immediately for all encounters after
May 2010.
However, Edouard continued to criminally exploit Anne, under the
elders’ supervision, until December 10, 2010—the date of the last
encounter between Edouard and Anne. Plaintiffs filed suit on
December 7, 2012. Because Anne was the victim of Edouard’s criminal
exploitation, and the Church potentially engaged in negligent supervision
during the limitations period, Anne’s claim is not entirely time-barred.
Anne therefore has an actionable claim against the Church for its failure
to supervise Edouard during the limitations period. Cf. Farmland Foods
v. Dubuque Human Rights Comm’n, 672 N.W.2d 733, 741 (Iowa 2003)
(“[T]he existence of past acts and the employee’s prior knowledge of their
occurrence . . . does not bar employees from filing charges about related
discrete acts so long as the acts are independently discriminatory and
charges addressing those acts are themselves timely filed.” (second
alteration in original) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536
U.S. 101, 113, 112 S. Ct. 2061, 2072 (2002))).
Plaintiffs further allege that even if Valerie and Anne had inquiry
notice outside of the limitations period, they were unable to act upon
their knowledge, and thus the limitations period should be tolled until
they were free from the Church’s control. Plaintiffs exclusively rely on
Callahan to support their theory. In Callahan, a child was abused from
31
the age of four to age seven, but did not disclose his abuse to his mother
until several years later. 464 N.W.2d at 269. When his mother brought
suit individually and as her son’s next friend, the district court dismissed
the claims because the son’s abuse took place outside the limitations
period. Id. We reversed, explaining at issue was not the son’s knowledge
of the abuse, but rather his mother’s. Id. at 273. Because there were
sufficient facts in the record for a jury to conclude that, despite her best
efforts, the mother could not have discovered her child’s abuse until he
disclosed it under intensive counseling, we held summary judgment was
improper. Id. Callahan did not address the victim’s ability to act on
knowledge of sexual abuse, but rather underscores that the
psychological ramifications of sexual abuse may affect when an injury
can reasonably be discovered. Here, both Valerie and Anne discovered
the nature of Edouard’s scheme, and thus their injuries, more than two
years prior to filing suit. Thus, reliance on Callahan is inapposite.
As an alternative to the discovery rule, plaintiffs ask that we allow
Valerie and Anne’s claims to proceed, for their entire period of
exploitation, under the continuing-violations doctrine. Specifically,
plaintiffs ask that we apply the “cumulative wrongs” theory to the
Church’s misconduct. Although the parties dispute whether we have in
fact adopted the continuing-violations theory, we need not resolve that
issue, as we do not find the theory applicable in this case.
Plaintiffs cite Page v. United States to support their cumulative
wrongs theory. See 729 F.2d 818, 821–22 (D.C. Cir. 1984). In Page, the
court explained, “[W]hen a tort involves continuing injury, the cause of
action accrues, and the limitation period begins to run, at the time the
tortious conduct ceases.” Id. at 821 (quoting Donaldson v. O’Connor, 493
F.2d 507, 529 (5th Cir. 1974), overruled on other grounds, 422 U.S. 563,
32
95 S. Ct. 2486 (1975)). The doctrine applies when “no single incident in
a continuous chain of tortious activity can ‘fairly or realistically be
identified as the cause of significant harm,’ [and] it seems proper to
regard the cumulative effect of the conduct as actionable.” Id. at 821–22
(quoting Fowkes v. Pennsylvania R.R., 264 F.2d 397, 399 (3rd. Cir.
1959)). Here, however, the Church’s negligent supervision of Edouard’s
criminal conduct did not become actionable because of its continuous
nature. Each sexual encounter was an act of sexual exploitation, which
was potentially facilitated by the elders’ negligent supervision. Plaintiffs’
claims are not derived from a cumulative wrong, but from reoccurring
wrongs.
In summary, we find Valerie’s negligent-supervision claim is barred
by the statute of limitations and Anne may proceed on a negligent-
supervision claim derived from any exploitation that occurred within the
two-year limitations period.
B. Defamation Claims.
1. Defamation principles. Our defamation law “embodies the
public policy that individuals should be free to enjoy their reputation
unimpaired by false and defamatory attacks. An action for defamation
. . . is based upon a violation of this right.” Schlegel v. Ottumwa Courier,
585 N.W.2d 217, 221 (Iowa 1998) (quoting 50 Am. Jur. 2d Libel and
Slander § 2, at 338–39 (1995)). We recognize two types of defamation:
per quod and per se. Johnson v. Nickerson, 542 N.W.2d 506, 510 (Iowa
1996).
Defamation per quod “refer[s] to facts or circumstances beyond the
words actually used to establish the defamation.” Id. To succeed in
proving defamation per quod, a party must prove six elements:
(1) publication, (2) a defamatory statement, (3) falsity, (4) maliciousness,
33
(5) the statement was of or concerning the party, and (6) a resulting
injury. Bierman v. Weier, 826 N.W.2d 436, 443 (Iowa 2013).
Defamation per se, alternatively, exists when a statement has a
“natural tendency to provoke the plaintiff to wrath or expose him to
public hatred, contempt, or ridicule, or to deprive him of the benefit of
public confidence or social intercourse.” Johnson, 542 N.W.2d at 510
(quoting Prewitt v. Wilson, 128 Iowa 198, 202, 103 N.W. 365, 367 (1905)).
If a statement is defamatory per se, the elements of falsity, malice, and
injury are legally presumed and the statement is actionable without proof
of the same. Schlegel, 585 N.W.2d at 222.
“An attack on the integrity and moral character of a party is
libelous per se.” Vinson v. Linn-Mar Cmty. Sch. Dist., 360 N.W.2d 108,
116 (Iowa 1984). We have found defamation per se in statements
accusing an individual of being a liar, Wilson v. IBP, Inc., 558 N.W.2d
132, 139 (Iowa 1996), accusing an individual of an indictable crime of
moral turpitude or that carries a jail sentence, Rees v. O’Malley, 461
N.W.2d 833, 835 (Iowa 1990), and accusing an individual of falsifying
information, Vinson, 360 N.W.2d at 116. We have also characterized an
accusation of adultery as defamation per se. Arnold v. Lutz, 141 Iowa
596, 597–98, 120 N.W. 121, 121 (1909).
To prove publication, a party must demonstrate the challenged
communication was made “to one or more third persons.” Huegerich v.
IBP, Inc., 547 N.W.2d 216, 221 (Iowa 1996). The third person must not
only hear the statement, but also understand it to be defamatory. Id.
Whether a listener understands a statement to be defamatory requires
viewing the statements “in the context of the surrounding circumstances
and within the entire communication.” Id. As well, a speaker may be
34
liable for “damages resulting from the repetition of the statement if the
repetition was reasonably foreseeable.” Id. at 222.
With respect to falsity, “statements regarding matters of public
concern that are not sufficiently factual to be capable of being proven
true or false and statements that cannot reasonably be interpreted as
stating actual facts are absolutely protected under the Constitution.”
Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 771 (Iowa 2006).
Although there is no strict dichotomy between “opinion” and “fact,” we
must consider “whether the alleged defamatory statement can reasonably
be interpreted as stating actual facts and whether those facts are capable
of being proven true or false.” Id. Under this framework, “statements of
opinion can be actionable if they imply a provable false fact, or rely upon
stated facts that are provably false.” Id. (quoting Moldea v. N.Y. Times
Co., 22 F.3d 310, 313 (D.C. Cir. 1994)). Importantly, “[t]he statement
that the plaintiff must prove false is not the literal wording of the
statement but what a reasonable reader or listener would have
understood the author to have said.” Id.
We utilize a four-part test to determine whether a statement is
factual or a protected opinion. The first factor is “whether the alleged
defamatory statement ‘has a precise core of meaning for which a
consensus of understanding exists or, conversely, whether the statement
is indefinite and ambiguous.’ ” Id. at 770 (quoting Ollman v. Evans, 750
F.2d 970, 979 (D.C. Cir. 1984)). The second factor is “the degree to
which the [alleged defamatory] statements are . . . objectively capable of
proof or disproof[.]” Id. (quoting Ollman, 750 F.2d at 981) (alterations in
original). The third factor is “the context in which the alleged defamatory
statement occurs.” Id. The final factor we consider is “the broader social
35
context into which [the alleged defamatory] statement fits.” Id. (alteration
in original) (quoting Ollman, 750 F.2d at 983).
Otherwise, actionable statements may be nevertheless rendered
nonactionable when spoken or written pursuant to a qualified or
absolute privilege. A communication is qualifiedly privileged if
(1) the statement was made in good faith; (2) the defendant
had an interest to uphold; (3) the scope of the statement was
limited to the identified interest; and (4) the statement was
published on a proper occasion, in a proper manner, and to
proper parties only.
Barreca v. Nickolas, 683 N.W.2d 111, 118 (Iowa 2004). We have
previously decided that “communications between members of a religious
organization concerning the conduct of other members or officers in their
capacity as such are qualifiedly privileged.” Kliebenstein v. Iowa
Conference of United Methodist Church, 663 N.W.2d 404, 407 (Iowa 2003)
(quoting 50 Am. Jur. 2d Libel and Slander § 340, at 663 (1995)).
Qualified privilege may be lost, however, if the speaker abuses the
privilege by speaking with actual malice or excessively publishing the
statement “beyond the group interest.” Id. (quoting Brewer v. Second
Baptist Church of L.A., 197 P.2d 713, 717 (Cal. 1948) (en banc)). A
statement is made with actual malice if the speaker “acted with knowing
or reckless disregard of the truth of the statement.” Barreca, 683 N.W.2d
at 121. In the clergy context, a statement loses its privilege if made to
individuals outside the congregation. Kliebenstein, 663 N.W.2d at 407.
In Kliebenstein, for example, we determined a church’s statement that
described the plaintiff as the “spirit of Satan” was not qualifiedly
privileged, as it was made to members of the general public and the term
had an offensive, secular meaning. Id. at 407–08.
 36
2. Merits. We have identified eleven statements that plaintiffs
contend are actionable, defamatory communications. 4 We will address
each statement in turn.
First, one day in early 2011, Ryan was experiencing significant
distress from the circumstances and threatened to hurt himself. He
reached out to Jason, who called several individuals to come and stay
with Ryan. That evening, Elder Hettinga told the plaintiffs, in front of the
other third parties present, that “you are not victims.” Plaintiffs allege
this statement is defamatory. We are unable to discern from the record
whether the third parties present were exclusively Church members or if
others were there as well. Accordingly, we cannot conclude the
statements are qualifiedly privileged. However, we find the statement is a
protected opinion and nonactionable. At the time of this incident,
Edouard’s conduct had just been revealed. He had not been charged,
tried, or convicted. Moreover, the statement was made in the context of
the dispute between the parties as to whether the women should be
referred to as “victims” by the elders when communicating with the
congregation. While many may find Hettinga’s statement offensive,
whether the women are victims or sinners in need of forgiveness is not
objectively capable of proof or disproof. Yates, 721 N.W.2d at 770.
Second, on the same evening and under the same circumstances
as the first statement, Elder Hettinga additionally stated, “Unless . . . he
was holding a knife to her throat, it wasn’t rape.” Hettinga purportedly
made this statement in response to Ryan’s claim that his sister-in-law,
Valerie, had been raped. Hettinga disagreed. Again, Edouard had not
4The Church disputes whether many of these statements actually were made.
For summary judgment purposes, we will presume these communications were made in
the manner alleged.
37
yet been convicted or acquitted, and the men were likely not speaking in
terms of the legal definition of rape. While Hettinga’s statement similarly
may offend a great many people, others may believe that without a threat
of force, rape has not occurred. Indeed, some states still require a
showing of force as an element of rape. See, e.g., Mass. Gen. Laws Ann.
ch. 265, § 22 (West, Westlaw current through ch. 63 of 2018 2d Ann.
Sess.) (defining rape as sexual intercourse compelled “by force and
against [the] will” of the other (emphasis added)). Accordingly, a
“consensus of understanding” does not exist as to whether rape exists
without a threat of force. Yates, 721 N.W.2d at 770. Moreover, given
dialogue between the Church and the plaintiffs as to whether the women
were “victims” or “sinners,” the context of Hettinga’s statement supports
a finding that he was expressing his subjective belief about the plaintiffs’
status as victims, rather than communicating a verifiable fact.
Third, during a home visitation with members of the Church, Elder
Van Donselaar stated, “[O]ur only wish is that the women would admit
what they did was wrong and ask for forgiveness like [Edouard] did.”
Again, while some may find Van Donselaar’s statement offensive, he was
speaking as an elder to members of the Church about whether other
members should ask for forgiveness for their alleged sins. His statement
is qualifiedly privileged, as it is a “communication[] between members of
a religious organization concerning the conduct of other members or
officers in their capacity as such.” Kliebenstein, 663 N.W.2d at 407
(quoting 50 Am. Jur. 2d Libel and Slander § 340, at 663). Plaintiffs argue
that the women have always described the conduct as nonconsensual,
and thus Van Donselaar spoke with actual malice. However, at the time
of the communication, Edouard had not yet been convicted, and
38
Van Donselaar therefore did not speak with a “knowing or reckless
disregard of the truth.” Barreca, 683 N.W.2d at 121.
Fourth, on the same evening as the above statement, Elder
Van Donselaar further stated, “If Edouard goes to jail, there are four
women who should go to jail as well.” This statement is a nonactionable
opinion. Whether the women are morally deserving of criminal
punishment is not objectively capable of proof or disproof and is
therefore protected by the First Amendment.
Fifth, during a Board of Elders meeting, Elder Van Mersbergen
stated Edouard’s conduct “was not clergy sexual abuse.” This statement
is qualifiedly privileged, as it was made by and about members of a
religious organization in their capacity as such. Moreover, this
statement was made prior to Edouard’s conviction, and thus,
Van Mersbergen did not speak with actual malice.
Sixth, Elder Van Donselaar stated in a phone call with Ryan that
Edouard’s conduct “was not clergy sexual abuse.” Akin to the prior
statement, this communication is qualifiedly privileged and was spoken
without actual malice.
Seventh, on the same phone call with Ryan, Elder Van Donselaar
stated, “Edouard is more repentant than any of the women will ever be.”
At first glance, it appears the statement is nonactionable because it is
not false. Anne and Valerie have always maintained they have nothing to
“repent” as they were victims in Edouard’s sexual exploitation scheme.
Yet, given the context of the statements, the true message here is not
that the women are factually unrepentant, but rather that they should be
repentant because they too sinned. However, the latter notion is
similarly nonactionable for the same reasons as the first communication.
39
Whether, in the eyes of an elder, the women are victims or sinners in
need of forgiveness is not objectively provable.
Eighth, during a Board of Elders meeting, Elder Hartman stated,
“Grooming is a word made up by professionals. In reality, it is
temptation. These women fell into temptation and they sinned.” Similar
to the fifth statement, Hartman was speaking to and about members of
the church in their capacity as such. Accordingly, the statement is
privileged, and plaintiffs have not adduced evidence to demonstrate
Hartman was speaking with actual malice.
Ninth, in a letter to the congregation dated January 14, 2011, the
elders informed the parishioners that there was “sexual immorality
and/or inappropriate contact” between Edouard and “multiple women
congregant members.” The letter urged the congregation to demonstrate
“forgiving love” to these female members. The statements contained in
the letter are qualifiedly privileged, and there is no evidence in the record
that the elders were speaking with actual malice. Rather, the record
demonstrates the elders sincerely believed that, pursuant to their faith,
the women were in need of forgiveness, and Edouard’s criminal conduct
was “sexual immorality.”
Tenth, on September 19, 2012, the elders sent a letter to the
plaintiffs expressing the elders’ forgiveness for the plaintiffs’ sin of
adultery. While accusing a party of adultery is indeed defamation per se,
this statement lacks the necessary element of publication, as it was sent
exclusively to the plaintiffs.
Eleventh, on December 10 and 11, 2012, the elders prepared and
read statements to the congregation. The elders stated,
God calls [it] sin when someone who is married willingly has
intimate relations with a person who is not their spouse and
we have learned that other members rejected the
40
manipulations of a man who never should have lead them
astray.
We find this statement is qualifiedly privileged. Although it does not
directly name Anne and Valerie, nor Edouard’s other victims, by name, a
reasonable listener would understand the elders to be speaking about
the women involved in Edouard’s criminal scheme. The elders were
therefore speaking to members of the church about the conduct of other
members in their capacity as such. At this time, Edouard had been
convicted of sexual exploitation, and plaintiffs therefore argue that the
elders spoke with actual malice by inferring that Edouard’s victims had
“willing” relations with him. However, Edouard was acquitted of sexual
abuse, and the crime of sexual exploitation does not contain a consent
element. We find that plaintiffs have not proven that the elders spoke
with a “knowing or reckless disregard of the truth,” as a reasonable
person could understand Edouard’s acquittal to mean the jury believed
the encounters were consensual. Barreca, 683 N.W.2d at 121. Thus, the
statement remains qualifiedly privileged.
As a final matter, the plaintiffs contend that the Church
necessarily abused any qualified privilege by excessively publishing their
statements in a manner that permitted the news media to obtain and
publish information about Edouard’s criminal misconduct. However,
plaintiffs have not adduced any evidence to demonstrate the elders were
negligent in their communications or otherwise responsible for the story
ultimately ending up in the press. Accordingly, summary judgment was
properly granted on all of plaintiffs’ defamation claims.
C. Issue Preclusion. Plaintiffs wish to use the doctrine of
offensive issue preclusion, based on Edouard’s criminal convictions, to
prevent the Church from stating or otherwise implying at trial that the
41
plaintiffs consented to their encounters with Edouard. The district court
declined to apply the doctrine, as the crime of sexual exploitation by a
counselor does not require the jury to find, as an element, that the
plaintiffs did not consent.
Generally, issue preclusion, or collateral estoppel, “prevents parties
to a prior action in which judgment has been entered from relitigating in
a subsequent action issues raised and resolved in the previous action.”
Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981). A party
seeking to preclude an issue from being litigated must satisfy four
prerequisites:
(1) the issue concluded must be identical; (2) the issue must
have been raised and litigated in the prior action; (3) the
issue must have been material and relevant to the
disposition of the prior action; and (4) the determination
made of the issue in the prior action must have been
necessary and essential to the resulting judgment.
Id.
Offensive issue preclusion contemplates a party that is “a stranger
to the judgment . . . rely[ing] upon a former judgment as conclusively
establishing in his favor an issue which he must prove as an essential
element of his cause of action or claim.” Id. “Although offensive use of
issue preclusion is allowed in Iowa, it is more restrictively and cautiously
applied than defensive issue preclusion.” Buckingham v. Fed. Land Bank
Ass’n, 398 N.W.2d 873, 876 (Iowa 1987) (citation omitted). Offensively
invoking the doctrine of issue preclusion requires proving two additional
elements:
(1) whether the opposing party in the earlier action was
afforded a full and fair opportunity to litigate the issues . . .,
and (2) whether any other circumstances are present that
would justify granting the party resisting issue preclusion
occasion to relitigate the issues.
42
Winger, 881 N.W.2d at 451 (alteration in original) (quoting Emp’rs Mut.
Cas. Co., 815 N.W.2d at 22).
Edouard was convicted of sexual exploitation by a counselor or
therapist in violation of Iowa Code section 709.15(2)(c). The jury
instructions required the jury to find the following four elements:
(1) On or about April 2008, through 2010, the defendant
engaged in sexual conduct with Anne Bandstra.
(2) The defendant did so with the specific intent to arouse or
satisfy the desires of either the defendant or Anne Bandstra.
(3) The defendant was then a counselor or therapist.
(4) Anne Bandstra was then receiving mental health services
from the defendant, or had received mental health services
from the defendant within one year prior to the conduct.
The jury therefore did not determine whether Anne’s encounter with
Edouard was consensual. “The fundamental rationale of collateral
estoppel or issue preclusion commands that the doctrine only be applied
to matters that have been actually decided.” City of Johnston v.
Christenson, 718 N.W.2d 290, 301 (Iowa 2006). Because the victim’s
nonconsent is not an element of sexual exploitation by a counselor or
therapist, the issue was not “necessary and essential to the resulting
judgment.” Hunter, 300 N.W.2d at 123. Accordingly, the district court
did not err in determining that issue preclusion is inappropriate in this
instance.
D. Clergy Privilege. The plaintiffs further dispute the court’s
application of the clergy privilege throughout discovery. The plaintiffs
challenge the applicability of the privilege to many specific documents,
including the minutes of Board of Elder meetings.
The clergy privilege, as codified by the legislature, instructs
a member of the clergy shall not be allowed, in giving
testimony, to disclose any confidential communication
properly entrusted to the person in the person’s professional
43
capacity, and necessary and proper to enable the person to
discharge the functions of the person’s office according to
the usual course of practice or discipline.
Iowa Code § 622.10(1). Accordingly, for a party to avail itself of the
privilege, it must demonstrate that a communication is “(1) confidential;
(2) entrusted to a person in his or her professional capacity; and
(3) necessary and proper for the discharge of the function of the person’s
office.” Richmond, 590 N.W.2d at 35.
The statute embodies the long-standing public policy that “the
human being does sometimes have need of a place of penitence and
confession and spiritual discipline. When any person enters that secret
chamber, this statute closes the door upon him, and civil authority turns
away its ear.” Reutkemeier v. Nolte, 179 Iowa 342, 350, 161 N.W. 290,
293 (1917). Earlier versions of the statute cloaked communications with
“minister[s] of the gospel” and “priest[s] of any denomination.” Id. at 346,
161 N.W. at 292 (quoting Iowa Code Supp. § 4608 (1913)). Today, the
statute vests the privilege within “member[s] of the clergy.” Iowa Code
§ 622.10(1) (2017).
Plaintiffs seize upon the word “clergy” and insist that, here, the
elders are not members of the clergy and therefore do not qualify.
Although a male member of the church need not complete formal
theological training, elders are, nevertheless, formally regarded as
spiritual leaders. The Church’s governing documents task the elders
with “continuing with prayer,” “maintain[ing] the purity of the Word and
Sacraments,” “assist[ing] in catechizing the youth,” “visit[ing] the
members of the congregation according to their needs,” and “engag[ing]
in family visiting.” Parishioners are expected to submit to the elders’
authority with respect to matters of doctrine and spirituality.
Accordingly, applying the priest–penitent privilege to counseling or
44
guidance communications with elders furthers the express purpose of
the privilege, and the district court correctly extended the privilege to
otherwise qualifying elder communications. See Reutkemeier, 179 Iowa
at 346, 161 N.W. at 292 (“What is a ‘minister of the gospel’ within the
meaning of this statute? The law as such sets up no standard or
criterion. That question is left wholly to the recognition of the
‘denomination.’ ”).
Importantly, however, the elders are more than spiritual leaders.
They also oversee the Church’s operations and perform supervisory and
administrative tasks. Communications related to governance or
administration are plainly outside the scope of the clergy privilege, as
they are not related confidential communications necessary to discharge
the elders’ religious duties. For example, the Church confirmed during
oral argument that supervising a minister is a purely secular task.
Accordingly, any statements relating to the elders’ supervision of
Edouard, or lack thereof, are not covered by the privilege, as they are not
necessary for the discharge of the elders’ religious duties. The clergy
privilege ensures members of the Church may confide in an elder without
fear of a subsequent disclosure in a judicial proceeding. It does not,
however, encompass administrative or otherwise secular
communications that happen to be uttered by an elder with some
religious duties.
Plaintiffs have requested we review the court’s application of the
clergy privilege to several documents identified only by Bates number.
Because we cannot view the documents themselves, we are unable to
determine whether nonprivileged information was erroneously withheld.
On remand, plaintiffs may petition to have certain orders reconsidered in
light of the principles we have clarified today. With respect to the Board
45
of Elder meeting minutes, any discussion of confidential communications
made pursuant to the elders’ duties as religious counselors are
privileged. Communications relating to the elders’ secular duties, such
as supervision, governance, and administration, are beyond the scope of
the privilege and may not be withheld.
E. Disputed Documents. In cases that involve sensitive issues
such as assault and exploitation, we understand that the litigation
process may impose hardship on clients and, sometimes, even counsel.
Our rules of professional responsibility and standards of decorum
instruct that counsel should seek to resolve disputes promptly, in a civil
and reasonable manner, even in cases touching upon personal and
trying topics. On remand, we emphasize counsels’ obligation to act in
good faith when resolving discovery disputes and avoid unnecessary
court involvement.
The final matter in this case is the disputed production of over 100
documents, identified on appeal only by Bates number. Plaintiffs allege
the listed Bates numbers represent challenged documents that were
either never submitted to the court for review or were deemed
nonprivileged yet never produced.
The first group of documents 5 are indeed documents that were
deemed nonprivileged yet never produced. The documents, relating to
Reverend Barnes, were challenged in the plaintiffs’ second motion to
compel. They were listed in the defendant’s privilege log, reviewed by the
court, and determined not to be privileged in the court’s second
supplemental ruling on plaintiffs’ motion to compel. It appears from the
5Covenant Reformed Church (CRC): 0095, 0098, 0100, 0110, 0111–12, 0113–
14, 0137, 0138, 0139, 0143, 0144–45, 0148, 0149, 0151, 0154, 0155–56, 0164, 0165–
66, 0167–69, 0173, and 0174.
46
record that defendant never produced these documents, in contravention
of the court’s order. Thus, defendant must produce these documents on
remand.
The second group of documents 6 also relate to Reverend Barnes.
In the court’s ruling on plaintiffs’ second motion to compel, it instructed
that the defendant need not produce any documents identified as
privileged in its log. All of the documents in this group were identified as
privileged in the defendant’s log. The court then ordered that if plaintiffs
“feel that some specific letter should be produced, it will be incumbent on
them to identify that specific letter . . . within 20 days of the filing of this
ruling.” Based on our review of the record, it appears plaintiffs failed to
identify these documents within twenty days. Accordingly, the
documents in this group need not be produced.
The third group of documents 7 are minutes of three Executive
Committee meetings in the summer of 2014—over three years after
Edouard’s misconduct came to light. The documents appear to relate to
an investigation into David Te Grotenhuis and Steven Runner. The
district court’s ruling on plaintiffs’ second motion to compel found the
investigation to be outside the scope of the lawsuit and not discoverable.
We agree and find these documents need not be produced on remand.
The fourth group of documents 8 are various papers that the
defense claimed as privileged in their February 29 and March 16, 2016
6CRC: 0096–97, 0099, 0106, 0109, 0115, 0117, 0118–19, 0120, 0121–22, 0123,
0124, 0125–26, 0127–28, 0129, 0130–32, 0133, 0134, 0135, 0136, 0140, 0142, 0157–
58, 0159–60, 0175, 0176, 0177, 0178–79, 0180, 0181, 0182–83, 0184, 0185, 0186,
0187–88, 0189, 0190, 0191–92, 0193, 0194–95, 0196–97, 0198–99, 0200–02, 0203–04,
0205, 0206–07, 0208, 0209, and 0211–12.
7CRC: 0267, 0268, and 0269.
8CRC 2329; De Jong 093–0102; Te Grotenhuis 0105–06; Hartman: 0229, 0230,
0231, 0313–14, 0314–17, 0323, 0346, and 0377–78.
47
supplemental production and privilege log. The plaintiffs promptly
challenged each of these documents and requested they be submitted to
the court for in camera review in two letters to defense counsel dated
March 28 and April 1, 2016. The defendant never submitted the
documents for review. Although the plaintiffs challenged the documents
before the discovery period closed on April 21, the district court
erroneously found that “discovery is closed,” and the “documents now
challenged by plaintiffs were identified as privileged long ago and not
challenged until now.” Because plaintiffs’ challenges were timely,
defendant must produce the documents to the court for in camera review
on remand.
The fifth group of documents 9 are notes of several Board of Elder
meetings. Defendant initially produced the documents to the plaintiffs,
yet improperly redacted “nonresponsive” information from the
documents. However, after a challenge from the plaintiffs, it appears
defendant produced complete copies of these pages in its March 1, 2016
supplemental production. Thus, plaintiffs have already received these
documents.
The final group of documents 10 were included in plaintiffs’ fourth
motion to compel. Although the documents are identified as relating to
“Te Grotenhuis,” a thorough review of the record has failed to adduce any
indicia of what these documents actually contain. We therefore cannot
discern whether the documents relate to the investigation of David
Te Grotenhuis, which was deemed beyond the scope of the suit or some
other discoverable matter. Because plaintiffs appear to have challenged
9Veenstra: 001, 002, 003, 004, 005, 006, 009, and 011.
10Te Grotenhuis: 0107–10, 0111–14, 0115–17, 0118–19, 0120, 0121–22, 0125–
27, and 0128.
48
these documents prior to the close of discovery, defendant must submit
these documents for in camera review on remand.
Plaintiffs further challenge several individual documents. One
such document, CRC–2379, is the minutes of a Board of Elders meeting.
A portion of the document was challenged and deemed privileged in the
court’s ruling on plaintiffs’ first motion to compel. However, when
defense counsel produced the document, it redacted an additional
portion of the document, Article 27, and claimed it was privileged. The
plaintiffs challenged the new redaction in a letter dated March 28, 2016,
yet defense counsel never submitted the newly redacted document for
in camera review. Accordingly, plaintiffs challenged the document within
the discovery period, and counsel must submit it for in camera
inspection on remand.
Plaintiffs additionally wish to have document Van Mersbergen
0266 submitted for inspection. The document is a letter from Dennis
Van Gorp to Norman Van Mersbergen dated September 3, 2011. It was
claimed as privileged in defendant’s October 20, 2015 privilege log. In
plaintiffs’ fourth motion to compel, which was filed before discovery
closed, plaintiffs allege they challenged the document, and it was never
submitted to the court. On remand, defendant must submit the
document for in camera review.
Finally, on March 16, 2016, defendants produced the minutes for a
June 20, 2011 Board of Elders meeting. The minutes provided that
Reverend Cammenga submitted an exit report, although the report was
not attached to the produced minutes. On March 28, plaintiffs noticed
this oversight and requested that defendant produce
Reverend Cammenga’s report. Defendant never produced the report. In
their response to plaintiffs’ fourth motion to compel, defendant attached
49
a copy of the report but redacted the entirety of the document except
“Dear Dennis” and “With Christian Love, Pastor Cammenga.” The
district court then held that “the defendants have now produced that
report per the plaintiffs’ request and no ruling is necessary.” However,
because defendant failed to produce the report in a timely manner,
plaintiffs were kept from challenging the claimed privilege and the
document’s wholesale redaction. Accordingly, on remand, defendant
must submit the document for in camera inspection, and the court must
determine if the entire report is privileged.
IV. Conclusion.
Because we find the First Amendment does not bar negligent-
supervision claims against religious entities, and Anne’s claim is not
time-barred, we reverse the judgment of the district court. We affirm the
summary adjudication of plaintiffs’ defamation claims. On remand,
defendant must produce the identified documents for in camera
inspection.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
All justices concur except Hecht, J., who takes no part.