Presbyterian Church (u.S.A.) v. Hon Brian C. Edwards Judge, Jefferson Circuit Court

• Court: Kentucky Supreme Court
• Decided: September 27, 2018
• Docket: 2016-SC-0699
• Status: Unpublished

Opinion

RENDERED: SEPTEMBER 27, 2018 TO BE PUBLISHED

2016-SC-000699-MR

PRESBYTERIAN CHURCH (U.S.A.) APPELLANT

ON APPEAL FROM COURT OF APPEALS V. NO. 2016-CA-000459-OA JEFFERSON CIRCUIT COURT NO. 15-CI-002975

HON. BRIAN C. EDWARDS APPELLEE (JUDGE, JEFFERSON CIRCUIT COURT)

AND

REV. ERIC HOEY REAL PARTY IN INTEREST

OPINION OF THE COURT BY JUSTICE WRIGHT

AFFIRMING

Appellant, the Presbyterian Church, appeals from the Court of Appeals’

order granting in part and denying in part its petition for a writ to prohibit the

trial court from lifting its stay of discovery. The Court of Appeals granted the

writ to the extent the trial court should limit discovery to that which was

necessary to determine whether the church was entitled to ecclesiastical

immunity. For the following reasons, we affirm the Court of Appeals’ order. I. BACKGROUND

The Presbyterian Ministry Agency (PMA) hired Reverend Eric Hoey as the

Director of Evangelism and Church Growth. During his tenure in that

position, Hoey acted with other ministers to incorporate an entity separate and

apart from the church. Church funds were transferred to the newly-created

entity without authorization. The church issued a written warning to Hoey

regarding his actions. This warning included findings that Hoey failed to

properly manage ministers under his supervision, failed to timely inform his

supervisors that he incorporated the entity without authorization, and that

Hoey contributed to a culture of non-compliance with PMA and church policies.

The church reported the disciplinary action to Hoey’s Presbytery. That

notification indicated that Hoey had known about the incorporation and

approved a transfer of grant money without ensuring that the church’s

incorporation criteria were followed. The notification made it clear, however,

that Hoey never intended to personally benefit from the funds and that all

grant funds were returned. In addition to this disclosure made to the

Presbytery, the church also released general information about the

incorporation and dissolution of the entity to the denomination.

The church placed Hoey on paid administrative leave for more than six

months before terminating his employment. After his termination, Hoey filed a

complaint in Jefferson Circuit Court alleging the church defamed him by

reporting to independent Presbyterian news agencies and other third parties

that he had “committed ethical violations.” The church filed a motion for

2 summary judgment. Hoey did not respond to that motion, but, instead, served

the church discovery requests.

At a status hearing, the church argued to the trial court that Hoey

should not be entitled to discovery until the court ruled on its ecclesiastical-

abstention and ministerial-exception defenses. The trial court disagreed with

the church and ordered it to respond to Hoey’s discovery requests within

twenty days.

Following the trial court’s discovery ruling, the church petitioned the

Court of Appeals for a writ, arguing the trial court had essentially abrogated its

immunity by forcing it to participate in discovery without first making a

threshold immunity determination. The church also asked the Court of

Appeals to consider (for the first time) the issue of its immunity and to dismiss

the underlying action on those grounds. The Court of Appeals granted the writ

in part, holding the trial court had abused its discretion in allowing broad-

reaching discovery, but denied the writ insofar as it would allow discovery

related to the immunity issue. The Court of Appeals did not rule on the

immunity issue. The church appeals, arguing the Court of Appeals’ order did

not go far enough. We disagree.

II. ANALYSIS The issuance of a writ is an extraordinary remedy, and we have always

been cautious and conservative in granting such relief. Grange Mut. Ins. v.

Trude, 151 S.W.3d 803, 808 (Ky. 2004). The standard for granting petitions for

writs of prohibition and mandamus is the same. Mahoney v. McDonald-

3 Burkman, 320 S.W.3d 75, 77 n.2 (Ky. 2010) [citing Martin v. Admin. Office of

Courts, 107 S.W.3d 212, 214 (Ky. 2003)). This Court set forth that standard in

Hoskins v. Maricle:

A writ. . . may be granted upon a showing that (1) the lower court is proceeding or is about to proceed outside of its jurisdiction and there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury will result if the petition is not granted.

150 S.W.3d 1, 10 (Ky. 2004). Here, there is no argument that the lower court

lacked jurisdiction. Therefore, this case falls under the second class of writ,

which requires that there be (1) no adequate remedy by appeal and (2) great

injustice and irreparable injury.

In the present case, the church has satisfied the initial requirement of no

adequate remedy by appeal, as “[o]nce the information is furnished it cannot be

recalled.” Bender v. Eaton, 343 S.W.2d 799, 802 (Ky. 1961). However, the

church falls short of meeting the “great and irreparable injury” prong of that

test. In Bender, our predecessor court stated:

Compelling a party, in advance of trial, to produce for the benefit of his adversary information or evidence, even assuming he should not be required to produce it under the Rules, probably would not constitute ‘great and irreparable injury’ within the meaning of that phrase.” However, ... in a certain class of cases, of which this is one, the showing of such grievous injury is not an absolute necessity. . . . [I]f an erroneous order results in a substantial miscarriage of justice and the orderly administration of our Civil Rules necessitates an expression of our views, we may, and in the proper case should, decide the issue presented.

4 Id. “This Court has consistently recognized an exception to the irreparable

harm requirement in ‘certain special cases.”’ Ridgeway Nursing & Rehab.

Facility, LLC v. Lane, 415 S.W.3d 635, 639-40 (Ky. 2013). In such cases, this

Court will entertain the petition “provided a substantial miscarriage of justice

will result if the lower court is proceeding erroneously, and correction of the

error is necessary and appropriate in the interest of orderly judicial

administration.” Bender, 343 S.W.2d at 801. We review writs under the

“certain special cases” exception de novo. Grange, 151 S.W.3d at 810.

With that precedent in mind, we will determine if a substantial

miscarriage of justice will result if the trial court’s ruling regarding discovery is

erroneous and if the correction of that error is necessary to the orderly

administration of justice.

In St. Joseph Catholic Orphan Soc'y v. Edwards, we examined the

ecclesiastical-abstention defense; there, we held:

Like other affirmative defenses recognized by this Commonwealth, ecclesiastical abstention operates in confession and avoidance, meaning that even assuming the plaintiffs allegations to be true, he is nonetheless not entitled to recover. So, . . . we draw an analogy to perhaps the most commonly encountered defense of confession and avoidance, qualified governmental immunity, and aver that the ecclesiastical-abstention defense is to be applied in a manner that is procedurally consistent with the application of qualified governmental immunity.

449 S.W.3d 727, 737 (Ky. 2014). Here, the trial court would have allowed

broad discovery regarding the underlying merits of the case before making a

ruling as to the church’s immunity. However, “[i]mmunity from suit includes

protection against the ‘cost of trial’ and the ‘burdens of broad-reaching

5 discovery’. . . Lexington-Fayette Urban Cty. Gov't v. Smolcic, 142 S.W.3d 128,

135 (Ky. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982)). A

party entitled to immunity is immune not only from liability, but also “from the

burdens of defending the action.” Rowan Cty. v. Sloas, 201 S.W.3d 469, 474

(Ky. 2006).

Because the church should not be subjected to the broad-reaching

discovery allowed under the trial court’s order prior to an immunity

determination, we affirm the Court of Appeals’ denial of discovery which does

not pertain to the issue of the church’s immunity. “Because immunity is

designed to relieve a defendant from the burdens of litigation, it is obvious that

a defendant should be able to invoke [it] at the earliest stage of the proceeding.

. . . [O]nce the defendant raises the immunity bar by motion, the court must

proceed expeditiously.” Rodgers v. Commonwealth, 285 S.W.3d 740, 755 (Ky.

2009). To allow such broad discovery before the trial court rules on the

church’s immunity would result in “a substantial miscarriage of justice ... if

the lower court is proceeding erroneously, and correction of the error is

necessary and appropriate in the interest of orderly judicial administration.”

Bender, 343 S.W.2d at 801. This is simply not the manner in which an

immunity case should proceed. If immune, the church should not be subject

to the burdens of defending Hoey’s defamation action.

However, denying such broad discovery as to the issues underlying the

merits of Hoey’s defamation claim does not foreclose all discovery in this

matter. The trial court’s continuation with discovery regarding the church’s

6 immunity would neither amount to a substantial miscarriage of justice nor fly

in the face of orderly judicial administration. The immunity issue is squarely

before the trial court and we will not hinder the parties’ access to discovery

materials pertaining to that narrow issue. The trial court will be in the best

position to control the flow of discovery. In Kirby v. Lexington Theological

Seminary, we acknowledged that “excessive entanglement [with church

doctrine] may be a real possibility during the litigation but . . . the trial judge

has adequate discretion to control discovery and the flow of evidence so that if

ecclesiastical matters overtake the litigation, the case can be stopped on

summary judgment or simply dismissed.” 426 S.W.3d 597, 619 (Ky. 2014).

We do not believe very limited discovery concerning only the issue of immunity

merits the extraordinary remedy of a writ. After all, our case law has made it

clear: “[e]xtraordinary writs are disfavored . . . .” Buckley v. Wilson, 177

S.W.3d 778, 780 (Ky. 2005).

The church also asks this Court to take up the issue of the church’s

immunity at this juncture.1 We decline to do so. We have held, “[t]he decision

1 The dissent would dismiss the underlying defamation claim on grounds of immunity. However, as noted above, this is a determination for the trial court. When addressing this issue, the trial court will need to determine whether Hoey’s actions in approving a transfer of grant money without ensuring that the church’s incorporation criteria were followed raised an issue of ecclesiastical doctrine (thus giving rise to immunity) or if they amounted to a mere failure to follow organizational procedures. The dissent would require that any action of a religious organization would be beyond judicial review without any discovery to determine whether that action was based upon ecclesiastical doctrine. As we have held: the ecclesiastical abstention doctrine is primarily interested in preventing any chilling effect on church practices as a result of government intrusion in the form of secular courts. But when the case merely involves a church, or even a minister, but does not require the

7 of whether immunity applies in a given situation involves the determination of

the material facts; however, the question of immunity is one of law and is to be

determined by the trial court.” Norton Hosps., Inc. v. Peyton, 381 S.W.3d 286,

290 (Ky. 2012). Once the trial court rules on the church’s immunity, we note

that “an order denying a substantial claim of absolute immunity is immediately

appealable even in the absence of a final judgment.” Breathitt Cty. Bd. of Educ.

v. Prater, 292 S.W.3d 883, 887 (Ky. 2009). That is the proper avenue for this

case to proceed. We see no need in this matter to open this Court to an issue

not yet ripe for our review (and, indeed, one that may never become ripe for our

review depending on the proceedings below).

The dissent would dismiss the underlying defamation claim on grounds

of immunity. However, as noted above, this is a determination for the trial

interpretation of actual church doctrine, courts need not invoke the ecclesiastical abstention doctrine. No entanglement concern arises as a result of the mere reference of religion.

Kirby, 426 S.W.3d at 619. That is the issue here to be determined by the trial court—and the reason we hold this case should not end at this juncture. Furthermore, the dissent asserts “[i]t is absurd to hold that the Church could not be sued for firing Hoey because it falsely found him in violation of Presbyterian ethical policy, while inconsistently holding that the Church can be sued for falsely saying he was fired for violating Presbyterian ethical policy.” There are two problems with this position. First, discovery has not been held in this case to determine whether Hoey’s actions were a violation of church doctrine or were merely a procedural mistake. Second, there is a vast difference between holding that the relationship between a minister and his congregation requires such a degree of confidence that he must be considered an at-will employee versus considering a defamation claim regarding a written publication stating that the minister acted unethically. The firing would be based upon a problem with the relationship between the minister and his congregation, whereas the written publication of the statement that the minister was unethical could destroy the minister’s relationship with the public at large.

8 court—and we should not invade that court’s province. Ultimately, this case

hinges on whether the lofty writ standard is met. Here, no substantial

miscarriage of justice will result even assuming the trial court’s ruling

regarding narrow discovery relating only to the issue of immunity is

erroneous. If the trial court determines that the church is immune, the inquiry

need go no further. If that court determines it is not, that decision is

immediately appealable. This simply does not rise to the high level necessary

for this Court to grant an extraordinary writ. If the lower court proceeds

erroneously, there is an adequate remedy by appeal. This case could follow the

normal avenues of appeal without this Court accepting an ordinary immunity

ruling as grounds for an extraordinary writ and throwing open the floodgates

for such motions. This Court has provided the proper avenue for such a

determination—and that is the manner in which the case should proceed.

III. CONCLUSION

We hold that the church satisfied the “certain special cases” writ criteria

as to broad-reaching discovery. However, it failed to meet this lofty standard

as to limited discovery the trial court may deem necessary in order to

determine whether the church is immune from the present suit. Therefore, if it

deems necessary, the trial court should allow that limited discovery to proceed

and rule on the issue of immunity expeditiously. The case should not

proceed—whether with additional discovery (apart from that the trial court

deems necessary in making the immunity determination) or otherwise—until

the trial court rules on the threshold immunity issue. This Court declines the

9 church’s request to determine the issue of immunity. Therefore, we affirm the

Court of Appeals’ judgment. The case underlying this writ action should

proceed in the trial court consistent with this opinion.

All sitting. Minton, C.J., Hughes, and Keller, JJ., concur. Venters, J.,

dissents by separate opinion which Cunningham and VanMeter, JJ., join.

VENTERS, J., DISSENTING: Appellant, Presbyterian Church (USA) (the

Church), sought in the Court of Appeals, by way of a writ of prohibition, two

forms of extraordinary relief: dismissal of the underlying action because the

trial court was erroneously proceeding to adjudicate an issue of ecclesiastical

polity; and prohibiting the expansive discovery allowed by the trial court into

matters reaching well beyond the issue of ecclesiastical polity. The Court of

Appeals granted the latter relief but denied the former and the Majority affirms

that decision. Because I believe the Church was also entitled to dismissal of

the case, I dissent.

Reverend Eric Hoey was a minister employed by the Church to serve as

the Director of Evangelism and Church Growth for the Church’s Presbyterian

Ministry Agency (PMA). According to the Complaint Hoey filed in the trial

court, PMA fulfills the Church’s ministry and mission functions. Ultimately,

Hoey’s employment was terminated by the Church pursuant to its own internal

disciplinary processes for ministers after the Church’s governing body

determined that Hoey had violated written policies set forth in the Church’s

10 Ethics Policy, contained within the Church’s governing document, the Book of

Order.

The Church stated the following reasons for terminating Reverend Hoey’s

employment: he violated the Church’s written Ethics Policy; he failed to

properly manage the church ministers under his supervision; and without

authorization, he incorporated an independent legal entity outside the

Church’s organizational structure and transferred some of the Church’s grant

money from the PMA to that entity.2

According to Reverend Hoey’s Complaint, Church officials, acting within

the scope of their employment, said in a newsletter distributed to the

Presbyterian community that he was terminated because he “had committed

ethical violations and/or engaged in unethical conduct.” Hoey claims these

statements are actionable as defamation because in his profession, violating

Church ethics exposes him to “public ridicule and humiliation, . . . affect[s] his

future employment prospects,” and otherwise exposes him to “public hatred,

ridicule, contempt, or disgrace.”

To establish his claim of defamation, Hoey must prove that the Church

officials were lying when they said that his conduct violated the Church’s

ethical rules for its ministers. Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 281-

82 (Ky. 2014) (A requisite element of a defamation claim is “a false and

defamatory statement concerning another.”). Granting Hoey the benefit of any

2 The funds were later restored to the PMA.

11 factual dispute, and therefore, accepting as fact that Church officials said he

had violated Church ethical policies, the trial court can adjudicate Hoey’s claim

of defamation only by evaluating those policies and determining if the Church

officials’ statements are true.

There is no doubt that the Church’s governing body decided that Hoey

had violated the policies, so adjudicating the defamation claim requires a trial

process during which the judge or jury must examine the Church’s ethical

policies for its ministers and decide if Hoey had, indeed, violated them. In a

companion lawsuit on this very same claim, the Court of Appeals has already

determined that such an inquiry by a trial court violates the Ecclesiastical

Abstention Doctrine. See Dermody v. Presbyterian Church (U.S.A.), 530 S.W.3d

467, 472 (Ky. App. 2017).3 I commend that decision to the readers of this

opinion.

It is immediately apparent from the face of Hoey’s Complaint that his

claim can be sustained only by second-guessing the decision of the Church’s

governing body that Hoey violated the Church’s ethical policies. The only way

that Hoey can show that Church officials falsely stated that he violated the

Ethical Policy contained in the Book of Order is to prove that he did not violate

that policy.

I respectfully submit that only the Church can make that determination

and the Government, through its courts, legislature, or executive agencies,

3 The rationale expressed by the Court of Appeals in Dermody is, in my view, unassailable.

12 cannot supersede that decision. No discovery at all is necessary to establish

that unassailable fact; any compulsory inquiry into the matter imposed upon

the Church by the Government through the Courts treads over the Free

Exercise of Religion Clause. There are no “neutral principles of law,” as

explained below, that can be applied to resolve the matter. Hoey’s complaint

makes clear that any inquiries into the controversy will be “dependent on the

question of doctrine, discipline, ecclesiastical law, rule, or custom, or church

government [.]” Id. at 474.

The Church’s governing body adjudicated that Hoey had violated specific

provisions of the Church’s written Ethics Policy. Based upon these

adjudications, the Church determined that Hoey “had committed ethical

violations and/or engaged in unethical conduct.” A refutation of those

adjudications would require our secular courts to engage in a review and

critique of the Church’s underlying religious values and doctrines, an

undertaking specifically precluded by the Ecclesiastical Abstention Doctrine.

Id. at 472. And because the Church’s adjudications are not subject to such

refutation in a secular court setting, it follows that the falsity of those

adjudications may not be established in a defamation case so as to establish

an indispensable element of Hoey’s defamation claim.

The First Amendment Right to the Free Exercise of Religion guarantees a

church’s authority to hire and fire its ministers at will, unfettered by

government regulation.

13 The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S.

171, 188-89 (2012).

This Court has fully adopted the ministerial exception, recognizing that

“the secular courts have no competence to review the employment-related

claims of ministers against their employing faith communities” because the

minister is the chief instrument by which the church seeks to fulfill its

purpose.” Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 605 (Ky.

2014) (quotations marks and internal citations omitted). The “law should not

be construed to govern the relationship of a church and its ministers.” Id.

(citation omitted). Kentucky courts have long honored the belief, known as the

doctrine of ecclesiastical abstention, that the true “Free Exercise of Religion”

compels the courts to stay out of intra-church disputes based upon the

church’s rules of faith and practice.

We emphasized in Kirby:

14 It would be difficult for the ecclesiastical abstention doctrine to be more clearly expressed than in such matters relating to the faith and practice of the church and its members, the decision of the church court is not only supreme, but is wholly without the sphere of legal or secular judicial inquiry. Separation of church and state, being a vibrant principle historically in this Commonwealth, requires that the secular courts have no jurisdiction4 over ecclesiastical controversies and will not interfere with religious judicature or with any decision of a church tribunal relating to its internal affairs, as in matters of discipline or excision, or of purely ecclesiastical cognizance.

Id. at 618 (internal quotations marks and citations omitted) (emphasis added).

Only when a dispute hinges upon “neutral principles of law” can the

Court of Justice intercede. Id. “Neutral principles of law” means conventional

legal principles and theories requiring “no inquiry into religious doctrine.”

Jones v. Wolf, 443 U.S. 595, 603 (1979). Such principles are:

completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts [such as] 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.

In light of Hosanna-Tabor and Kirby, there is no doubt that Reverend

Hoey is precluded by the Ecclesiastical Abstention Doctrine and the ministerial

4 We later clarified that the term “no jurisdiction,” as used here, refers to specific case jurisdiction and is not intended to indicate that Kentucky courts lacked subject-matter jurisdiction. St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727, 736 (Ky. 2014).

15 exception from asserting a claim of wrongful termination based upon the

Church’s decision that he violated Church ethical rules. Neither the Court of

Justice nor any branch of the secular government has the authority to intrude

upon the validity of the Church’s decision about the meaning of its minister’s

Ethics Policy and the conduct that constitutes a violation. In a matter “relating

to the faith and practice of the church and its members, the decision of the

church court is not only supreme but is wholly without the sphere of legal or

secular judicial inquiry.” Kirby, 426 S.W.3d at 618.5 This matter relates to the

faith and practice of the Church’s ministry.

It is absurd to hold that the Church could not be sued for firing Hoey

because it falsely found him in violation of Presbyterian ethical policy, while

inconsistently holding that the Church can be sued for falsely saying he was

fired for violating Presbyterian ethical policy. Hoey cannot circumvent the

foregoing Free Exercise principles by demanding secular court intrusion into

the validity of the Church’s interpretation and application of its own Ethics

Policy for its ministers, and the validity of the disciplinary measures of its

ministers, by simply recasting the same claim as defamation rather than

wrongful termination when no neutral principle of law is relied upon.

If the Church’s governing body determined that Hoey’s conduct violated

Church policy, the Church cannot be subjected to a defamation suit for saying

5 Quoting Marsh v. Johnson, 82 S.W.2d 345 (Ky. 1935) (Overruled on other grounds by St. Joseph Catholic Orphan Society v. Edwards, 449 S.W.3d 727(Ky. 2014)).

16 so. And to say otherwise, that he did not violate Church ethical policy,

requires the Court to re-adjudicate the Church’s disciplinary decision.

The Court of Appeals erred in allowing further discovery on the

applicability of the Ecclesiastical Abstention Doctrine because the applicability

of the doctrine is evident on the face of the Complaint. The Church should not

be required to suffer the limited intrusion allowed under this Majority Opinion

into its Constitutionally-protected domain, nor should the Church bear the

additional expense and burden of this additional litigation when its immunity

from same is self-evident.

I respectfully submit that the Court of Appeals erred by denying the writ

sought by the Church and the Majority opinion does the same. Our

conventional writ standard is met because there is no remedy by way of appeal

or otherwise for this judicial intrusion into what is clearly and constitutionally

the Church’s exclusive domain of ecclesiastic polity. For that reason, I

respectfully dissent.

Cunningham and VanMeter, JJ., join.

COUNSEL FOR APPELLANT:

John O. Sheller Stoll Keenon Ogden, PLLC

Steven Clark Stoll Keenon Ogden, PLLC

COUNSEL FOR REAL PARTY IN INTEREST:

Roger Dale Warren Louisville, KY