Doe v. Pontifical College Josephinum , 2017 Ohio 1172 ( 2017 )

[Cite as Doe v. Pontifical College Josephinum, 2017-Ohio-1172.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
[John Doe], :
Plaintiff-Appellant, :
No. 16AP-300
v. : (C.P.C. No. 15CV-10780)
Pontifical College Josephinum, : (REGULAR CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on March 30, 2017
On brief: Engel and Martin, LLC, and Joshua Adam Engel,
for appellant.
On brief: Harris McClellan Binau & Cox PLL, and Mark S.
Coco, for appellee.
APPEAL from the Franklin County Court of Common Pleas
TYACK, P.J.
{¶ 1} Plaintiff-appellant, John Doe ("appellant"), appeals from a judgment of the
Franklin County Court of Common Pleas dismissing his claims against defendant-
appellee, Pontifical College Josephinum ("the Josephinum"), for lack of subject-matter
jurisdiction pursuant to the ecclesiastical abstention doctrine. For the reasons that follow,
we affirm the trial court's judgment.
I. FACTS AND PROCEDURAL HISTORY
{¶ 2} In December 2015, appellant filed a complaint in the common pleas court
asserting that he was a former student at the Josephinum in a program designed to
prepare students for careers as priests in the Roman Catholic Church. Appellant claimed
he had enrolled in the Josephinum in August 2010 and was scheduled to graduate in May
2016 with a master's degree in theology. Appellant alleged that, in October 2015, he had a
No. 16AP-300 2
meeting with the Rector and Vice Rector of the Josephinum. At that meeting, the Vice
Rector notified appellant that he had been dismissed from the Josephinum pursuant to an
investigation conducted by the Vice Rector, in which the Vice Rector determined that
there was a "credible accusation of homosexual activity" by appellant. (Dec. 9, 2015
Amended Compl. at ¶ 19.) Appellant was asked to turn in his identification card and room
key and advised to leave the campus of the Josephinum. The Josephinum subsequently
posted a public notice that appellant had been expelled.
{¶ 3} Appellant asserted he had requested access to his academic file, including
any disciplinary files, from the Josephinum. The Josephinum provided certain records,
but did not provide any records related to the alleged misconduct or his dismissal.
Appellant claimed he had appealed his dismissal from the Josephinum under canon law,
but was unable to present a credible defense in that appeal because he lacked records
from the Josephinum relating to his dismissal.
{¶ 4} Appellant's complaint asserted claims for breach of contract, intentional
infliction of emotional distress, unauthorized disclosure of confidential educational
records, and unjust enrichment. The complaint also sought an award of attorney fees for
bad-faith conduct. The complaint was filed anonymously and accompanied by a motion
for leave for appellant to proceed under the pseudonym "John Doe." The common pleas
court denied appellant's motion to proceed under a pseudonym and ordered appellant to
refile his complaint. Appellant refiled the complaint under his own name.
{¶ 5} The Josephinum moved to dismiss the complaint under Civ.R. 12(B)(1),
asserting that the common pleas court lacked subject-matter jurisdiction over appellant's
claims. The Josephinum argued that determination of appellant's claims would
necessarily require the court to inquire into an ecclesiastical disciplinary process, which
was barred by the ecclesiastical abstention doctrine. The common pleas court granted the
Josephinum's motion to dismiss, concluding that appellant's claims were inextricably
entangled with his assertion that he was improperly dismissed from the Josephinum and
prevented from becoming a priest. Therefore, the court reasoned, it would be impossible
to consider the claims in appellant's complaint without also considering his allegation of
improper dismissal from the Josephinum.
No. 16AP-300 3
II. ASSIGNMENTS OF ERROR
{¶ 6} Appellant appeals and assigns the following two assignments of error for
our review:
[I]. THE TRIAL COURT COMMITTED ERROR BY
DISMISSING THE COMP[L]AINT PURSUANT TO THE
ECCLESIASTICAL ABSTENTION DOCTRINE.
[II]. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT FAILED TO PERMIT THE PLAINTIFF TO
PROCEED AS JOHN DOE.
III. DISCUSSION
{¶ 7} In his first assignment of error, appellant asserts that the trial court erred by
dismissing his claims for lack of subject-matter jurisdiction pursuant to the ecclesiastical
abstention doctrine. Appellant argues that the ecclesiastical abstention doctrine does not
apply to the claims presented in his complaint because they do not require the court to
review the Josephinum's decision to dismiss him from the school.
{¶ 8} A court presented with a motion to dismiss for lack of subject-matter
jurisdiction must determine whether the complaint states any cause of action cognizable
by the forum. State ex rel. Bush v. Spurlock, 42 Ohio St. 3d 77, 80 (1989); PNC Bank,
Natl. Assn. v. Botts, 10th Dist. No. 12AP-256, 2012-Ohio-5383, ¶ 21. The trial court is not
limited to the allegations of the complaint and may consider other pertinent material
without converting the motion into a motion for summary judgment. Lawton v. Howard,
10th Dist. No. 13AP-878, 2014-Ohio-2660, ¶ 8. We review de novo a trial court’s dismissal
of an action for lack of subject-matter jurisdiction. Deutsche Bank Natl. Trust Co. v.
Finney, 10th Dist. No. 13AP-198, 2013-Ohio-4884, ¶ 14.
{¶ 9} The common pleas court concluded that it lacked subject-matter
jurisdiction over appellant's claims pursuant to the ecclesiastical abstention doctrine. The
ecclesiastical abstention doctrine arises from the First Amendment to the United States
Constitution, which provides that " 'Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.' " Zhelezny v. Olesh,
10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 36, quoting the First Amendment to the
United States Constitution. The Free Exercise Clause of the First Amendment requires
that in matters of discipline, faith, or ecclesiastical rule, custom, or law, the civil courts
No. 16AP-300 4
must not interfere with the determinations of a church’s highest adjudicatory authority
before which a matter has been heard. Id. at ¶ 36, citing Ogle v. Church of God, 153 Fed.
Appx. 371, 375 (6th Cir.2005), citing Watson v. Jones, 80 U.S. 679, 727 (1871).
{¶ 10} "Under Ohio law, a civil court has subject-matter jurisdiction over a case
involving a religious organization if the dispute is secular rather than ecclesiastical."
Zhelezny at ¶ 37. See also Harrison v. Bishop, 6th Dist. No. L-14-1137, 2015-Ohio-5308,
¶ 41 (describing two-part test applied by some Ohio appellate courts to determine whether
a court has subject-matter jurisdiction over a case involving a religious organization). The
Eighth District Court of Appeals has held that, with respect to questions of " 'who should
preach from the pulpit,' " civil courts generally lack jurisdiction to hear the dispute if the
church is hierarchical. Tibbs v. Kendrick, 93 Ohio App. 3d 35, 42 (8th Dist.1994).
"[W]here [a] dispute involves non-doctrinal contractual disputes, a civil court retains
jurisdiction to hear the dispute. Nonetheless, civil courts must not infringe upon a
hierarchical church's disposition of an ecclesiastical dispute." (Citation omitted.) Id. The
Josephinum is part of the Roman Catholic Church, which is a hierarchical religious
organization. See Plough v. Lavelle, 170 Ohio App. 3d 720, 2006-Ohio-6200, ¶ 18 (11th
Dist.).
{¶ 11} Appellant asserts that this court's decision in Zhelezny establishes the limits
of the ecclesiastical abstention doctrine and that, under the reasoning of Zhelezny, the
common pleas court had jurisdiction over his claims. The plaintiff in Zhelezny asserted
multiple claims against a church of which he had previously been a member, the pastor of
that church, and various church leaders and members. Zhelezny at ¶ 2. The claims arose
from restrictions that the church and pastor placed on the plaintiff’s access to the church
under a "ban letter," and various incidents that subsequently occurred at the church. Id. at
¶ 2-3. The plaintiff's claims included violation of his civil rights, intentional infliction of
emotional distress, malicious prosecution, and civil conspiracy. Id. at ¶ 4. The trial court
ultimately dismissed the complaint concluding, in part, that it lacked jurisdiction over the
claims for civil rights violations, intentional infliction of emotional distress, and civil
conspiracy under the ecclesiastical abstention doctrine. Id. at ¶ 35. On appeal, this court
affirmed the trial court’s conclusion with respect to the common law intentional infliction
of emotional distress claim, holding that the claim was beyond the trial court’s jurisdiction
No. 16AP-300 5
because the evidence clearly established that the dispute was "born out of [the plaintiff's]
estrangement from the church, his objections to the pastor, and his perception that
church leadership mistreated him and his family." Id. at ¶ 38. The ban letter asserted that
the pastor imposed restrictions on the plaintiff’s access to the church because the plaintiff
had engaged in " 'unacceptable and offensive behavior' " and subsequently extended
because the plaintiff "did not behave 'in a Christian manner.' " Id. at ¶ 39. We concluded
that "[t]he ecclesiastic abstention doctrine preclude[d] the court from adjudicating the
merit of the pastor's decision." Id.
{¶ 12} By contrast, we reversed the trial court’s conclusion that the claims for
malicious prosecution and civil conspiracy were beyond its jurisdiction, holding that those
claims could be decided independent of any ecclesiastical matters. The malicious
prosecution claim was based on an assertion that the plaintiff had been invited to the
church and subsequently prosecuted for trespassing. This claim was within the trial
court’s jurisdiction because it could "be determined without reference to the governing
documents of the church and without a determination of the merits of the ban." Id. at
¶ 41. Likewise, the civil conspiracy claim was based on assertions that the pastor and
various church leaders and members had regular meetings to discuss the plaintiff and
make plans to continue his prosecution for trespassing. Id. at ¶ 56. This claim was within
the trial court’s jurisdiction because it could be "resolved without the need for an
examination of purely ecclesiastical issues." Id. at ¶ 42.
{¶ 13} In the present case, as in Zhelezny, we must consider the basis for each of
appellant’s claims to determine whether the ecclesiastical abstention doctrine applies.
Appellant argues that his breach of contract, unjust enrichment, and bad-faith conduct
claims are based on civil contract law and would not require the trial court to resolve any
issues related to his dismissal from the Josephinum. He further argues that his claims for
intentional infliction of emotional distress and unauthorized disclosure of educational
records arise from civil tort law and likewise would not require consideration of
ecclesiastical issues. Although appellant argues that the trial court could resolve his
claims without addressing ecclesiastic issues, it is clear that the alleged unjust dismissal
lies at the core of each claim. Therefore, evaluating those claims would require the
No. 16AP-300 6
common pleas court to consider issues related to the Josephinum's disciplinary process
and the dismissal.
{¶ 14} The first count of the complaint, alleging breach of contract, is based on an
argument that appellant has a contractual relationship with the Josephinum. Appellant
claims that the terms of the contract are contained in the Josephinum's catalog and
student handbook. Appellant asserts that he is entitled to his educational records,
including records of disciplinary proceedings, under the terms of the Josephinum's
student handbook and its "Privacy and Release of Student Education Records (FERPA)"
policy, adopted pursuant to the federal Family Educational Rights and Privacy Act of
1974. Appellant further asserts that the Josephinum violated the implied covenant of
good faith and fair dealing arising from the contractual relationship. Resolving this claim
would involve an examination of the Josephinum's catalog and student handbook to
determine whether a contractual relationship existed and, if so, whether appellant had a
contractual right to obtain his records. Further, the trial court would be required to
scrutinize the Josephinum's disciplinary procedure to determine whether any records
created during the investigation were within the scope of appellant's alleged contractual
right to access his records.
{¶ 15} The second and third counts of appellant's complaint, asserting intentional
infliction of emotional distress and unauthorized disclosure of appellant's educational
records, are based on claims that the Josephinum harmed appellant by posting a notice of
his dismissal in a public space and disclosing his personal and confidential educational
records. Resolving these claims would require the court to determine whether posting a
notice of the dismissal was part of the Josephinum's disciplinary process. It would also be
necessary to consider the content of the notice, to determine whether it contained
personal or confidential information about appellant. Thus, the questions presented by
these claims are inextricably intertwined with the underlying disciplinary process that led
to the posting of the notice.
{¶ 16} In the fourth count of the complaint, appellant argues that permitting the
Josephinum to retain appellant's tuition and fee payments would result in unjust
enrichment because he was improperly dismissed without an explanation or opportunity
to defend himself. By its own terms, this claim depends on an assertion that the dismissal
No. 16AP-300 7
was improper. Thus, the trial court necessarily would be required to consider the basis for
the disciplinary proceeding in assessing whether the dismissal was justified in order to
determine whether it would be unjust for the Josephinum to retain any tuition or fee
payments made by appellant.
{¶ 17} Finally, the fifth count of the complaint, seeking attorney fees due to bad-
faith conduct, is related to the breach of contract claim, asserting that the Josephinum
acted in bad faith by refusing to provide records that appellant was entitled to by contract.
Similar to the breach of contract claim, resolving this claim would be contingent on
determining whether appellant had a contractual right to any disciplinary records and
whether the Josephinum acted in bad faith by refusing to provide those records. As
explained above, the trial court would be required to consider the scope and result of the
disciplinary proceeding to resolve these contractual claims.
{¶ 18} The claims presented in appellant's complaint are analogous to the
intentional infliction of emotional distress claim in Zhelezny—in both cases, the claims
were born out of the estrangement from the religious organization and the perception that
the claimant was mistreated. See Zhelezny at ¶ 38. Analysis of each of appellant's claims
necessarily implicates the procedure and result of the Josephinum's internal disciplinary
proceedings. Therefore, under the ecclesiastical abstention doctrine, the civil courts lack
jurisdiction over the claims asserted in appellant's complaint. See Ogle at 376 (holding
that court lacked subject-matter jurisdiction over claims for breach of implied contract,
tortious interference with business relationships, conspiracy, invasion of privacy, and
defamation, as well as request for declaratory judgment because the claims "all
implicate[d] the Church of God's internal disciplinary proceedings.").
{¶ 19} Accordingly, we overrule appellant's first assignment of error.
{¶ 20} In his second assignment of error, appellant argues that the common pleas
court erred by denying his motion to proceed anonymously using a pseudonym. As
explained above, we conclude that the common pleas court lacked subject-matter
jurisdiction over all of the claims raised in appellant's complaint, irrespective of whether
they were asserted in his own name or under a pseudonym. Accordingly, appellant's
second assignment of error is rendered moot by our determination of his first assignment
of error.
No. 16AP-300 8
IV. CONCLUSION
{¶ 21} For the foregoing reasons, we overrule appellant's first assignment of error
and his second assignment of error is rendered moot. The judgment of the Franklin
County Court of Common Pleas is affirmed.
Judgment affirmed.
LUPER SCHUSTER, J., concurs.
BRUNNER , J., concurs separately.
BRUNNER, J., concurring separately.
{¶ 22} I concur with the decision of the majority and offer this separate opinion to
discuss why FERPA, the Family Educational Rights and Privacy Act of 1974, as amended,
does not save the appellant's action in the common pleas court. The decision and record
we have reviewed is for a complaint filed for the most part to afford appellant access to his
educational records at the appellee's higher education religious institution. The appellant,
a student at the Pontifical College Josephinum ("college") was dismissed for reasons
related to his allegedly being a "homosexual." He has separately sued the college under
canon law. He seeks redress from the common pleas court because he has been denied
access to his school records, which he needs for his canonical action, even though the
college stated in its student materials that the student has the right to have access to his
educational records under FERPA.
{¶ 23} The record strongly suggests the college is bound by the requirements of
FERPA. The course catalog (which was incorporated by reference in the amended
complaint at paragraph 12c) was not attached to either the original or amended complaint
as contemplated in Civ.R. 10(D)(1), and appellant did not state the reason for that failure.
(Dec. 9, 2015 Amended Compl.) Appellant did allege, though, that the catalog was
incorporated in the complaint and he then provided an internet URL as a citation to the
document's location. (Amended Compl. at ¶ 12c.) There is some question about whether
we can rely on the catalog in reaching a decision. See Morgan v. Eads, 104 Ohio St. 3d
142, 2004-Ohio-6110, ¶ 13 ("A reviewing court cannot add matter to the record before it,
which was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter.").
No. 16AP-300 9
{¶ 24} However, there are cases indicating that, " '[m]aterial incorporated in a
complaint may be considered part of the complaint.' " RotoSolutions, Inc. v. Crane
Plastics Siding, LLC, 10th Dist. No. 13AP-1, 2013-Ohio-4343, ¶ 15, quoting State ex rel.
Crabtree v. Franklin Cty. Bd. of Health, 77 Ohio St. 3d 247, 249 (1997), fn.1; see also
Lisboa v. Lisboa, 8th Dist. No. 95673, 2011-Ohio-351, ¶ 38-39. But such case results
derive ultimately from when the material was incorporated and attached, which is not the
case here. State ex rel. Edwards v. Toledo City School Dist. Bd. of Edn., 72 Ohio St. 3d
106, 109 (1995) (the case on which Crabtree and progeny rely). But whether such cases
apply may be based on whether they were decided in the context of motions to dismiss
under Civ.R. 12(B)(6) or under 12(B)(1). Catudal v. Catudal, 10th Dist. No. 15AP-1092,
2016-Ohio-8498, ¶ 28, citing Estate of Sherman v. Millhon, 104 Ohio App. 3d 614, 617
(10th Dist.1995) (noting the differences in what materials can be considered in respect to
Civ.R. 12(B)(6) and 12(B)(1) motions). But appellant's failure to comply with Civ.R.
10(D)(1) may not be fatal, because when a court reviews a dismissal based upon
jurisdiction under Civ.R. 12(B)(1), the court "may consider any pertinent evidentiary
materials." Zhelezny v. Olesh, 10th Dist. No. 12AP-681, 2013-Ohio-4337, ¶ 10; see also
Lawton v. Howard, 10th Dist. No. 13AP-878, 2014-Ohio-2660, ¶ 8. For the purposes of
this concurrence I assume, without expressing an opinion, that the trial court could
appropriately have considered the catalog.
{¶ 25} The course catalog includes a lengthy policy establishing rights accorded to
students of the school in compliance with FERPA. 2015-2016 Catalog, Pontifical College
Josephinum, 76-78, http://www.pcj.edu/files/4514/4794/4982/15-16catalog.pdf
(accessed Mar. 16, 2017). It provides:
The Family Educational Rights and Privacy Act of 1974, as
amended, sets forth requirements designed to protect the
privacy of student educational records. The law governs
access to records maintained by educational institutions and
the release of information from those records. A notice is
given to enrolled students at the start of each fall semester to
explain the rights of students with respect to records
maintained by the college. It also outlines the college's
procedures to comply with the requirements of the Act.
http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html).
No. 16AP-300 10
The catalog elsewhere discusses the use of federal financial aid funds at length. FERPA
applies to institutions that accept federal funds including federal student aid. Id. at 67-
69; see 20 U.S.C. 1232g(a)(1)(A); 34 C.F.R. 99.1(c)(2). The amended complaint also
contains the allegation that "[o]n information and belief," the college receives federal
funding.1 (Amended Compl. at ¶ 14a).
{¶ 26} Notwithstanding the fact that FERPA applies to the college and supplies
verbiage in the nature of "rights" of parents and students, FERPA does not provide
students or their parents the private right of action. FERPA does, however, deny federal
funding to schools unless their policies include FERPA rights. Each relevant section of
FERPA begins substantially with the language, "[n]o funds shall be made available under
any applicable program to," and then specifies the conditions a school or agency must
meet to maintain funding. 20 U.S.C. 1232g(a)(1)(A) and (B), (a)(2), (b)(1) and (2), (e).
For example, the act provides:
No funds shall be made available under any applicable
program to any educational agency or institution which has a
policy of denying, or which effectively prevents, the parents of
students who are or have been in attendance at a school of
such agency or at such institution, as the case may be, the
right to inspect and review the education records of their
children.
(Emphasis added.) 20 U.S.C. 1232g(a)(1)(A).2
{¶ 27} Based on the plain language of the statute, the consequence for failing to
recognize FERPA rights is the denial of federal funds, not exposure to private suit.
FERPA is enforced by the United States Secretary of Education, not by the individual legal
action of an aggrieved student or parent:
Enforcement; termination of assistance. The Secretary shall
take appropriate actions to enforce this section and to deal
with violations of this section, in accordance with this Act,
1 No answer to the complaint has been filed which would have admitted or denied the allegation about
federal funding.
2 This provision of FERPA applies also to "eligible students," that is, students of legal age. 20 U.S.C.
1232g(d).
No. 16AP-300 11
except that action to terminate assistance may be taken only if
the Secretary finds there has been a failure to comply with this
section, and he has determined that compliance cannot be
secured by voluntary means.
20 U.S.C. 1232g(f). Because the statute vests enforcement power in the Secretary and not
the aggrieved individual, the United States Supreme Court (among numerous other
courts) has held that FERPA does not create a private right of action. Gonzaga Univ. v.
Doe, 536 U.S. 273 (2002).
{¶ 28} A student's or parent's recourse under FERPA is to "file a written complaint
with the [Family Policy Compliance] Office regarding an alleged violation under the Act
and this part." 34 C.F.R. 99.63. That office reviews and investigates the complaint in
accordance with the regulations set forth in 34 C.F.R. 99.63 through 99.66 and in
conjunction with the Office of Administrative Law Judges. 34 C.F.R. 99.60(c); 20 U.S.C.
1232g(g). The Secretary then enforces decisions in accordance with 34 C.F.R. 99.67.
{¶ 29} The action against the college is for the most part in contract and based on
denying appellant access to his records in violation of the school's policies (created in
accordance with FERPA) and is characterized as a breach of the contract between college
and appellant. See Frank v. Univ. of Toledo, 621 F. Supp. 2d 475, 485-86 (N.D.Ohio
2007). Generally, the relationship between a fee-paying student and a college is generally
contractual and "[t]he terms of such contract are found in the college catalog and
handbook supplied to students." Lewis v. Cleveland State Univ., 10th Dist. No. 10AP-
606, 2011-Ohio-1192, ¶ 14; see also, e.g., Savoy v. Univ. of Akron, 10th Dist. No. 13AP-
696, 2014-Ohio-3043, ¶ 23. However, the college in its catalog explicitly provides there is
no contract:
The present catalog is not to be considered a contract between
the Pontifical College Josephinum and the seminarian. The
Josephinum reserves the right, at its discretion, to make
changes in its educational, formational, or financial policies,
as dictated by changing circumstances.
2015-16 Catalog at v. Even if the appellant understood the catalog to be a contract (as he
alleges in his amended complaint at paragraph 12b), contracts typically require intent to
be bound (meeting of the minds) by both parties. Rayess v. Edn. Commn. for Foreign
Med. Graduates, 134 Ohio St. 3d 509, 2012-Ohio-5676, ¶ 19. Assuming that the appellant
No. 16AP-300 12
has validly incorporated the entire course catalog into his amended complaint, the very
document he seeks to enforce contains clear language that it is not to be construed as a
contract.
{¶ 30} In short, the only secular argument according to the law of contract that
appellant makes is obstructed by the terms of the very document he seeks to enforce.
{¶ 31} Appellant's amended complaint also exceeds the scope of an action to
obtain records owed to him under FERPA, whether or not a contract to provide them
exists. He has extended his breach of contract damages to include, for example,
"[e]xpulsion and other sanctions [which] damage his academic and professional
reputation," damage to his "ability to enroll at other institutions of higher education and
pursue a career," and damage to his "employment prospects." (Amended Compl. at ¶ 45.)
He also claims unjust enrichment in the college's late-imposed dismissal during his
academic career, stating he has not "violate[d] any of the rules of the Church or the
Josephinum." Id. at ¶ 59.
{¶ 32} The trial court had no recourse but to decline jurisdiction on First
Amendment grounds; it was unable to consider the decision to expel appellant from the
college. That decision (whether to retain a student at a Catholic school for training
priests) was the quintessential "who should preach from the pulpit" decision and not a
matter in which the secular sovereign should interfere. Tibbs v. Kendrick, 93 Ohio
App.3d 35, 41-42 (8th Dist.1994), citing Kedroff v. St. Nicholas Cathedral of Russian
Orthodox Church in N.A., 344 U.S. 94 (1952). Since these claims are related to a review of
the decision to expel him, an ecclesiastical decision, the trial court appropriately found it
did not have jurisdiction.
{¶ 33} For these reasons, along with those stated by the majority, I concur with the
decision of the majority.