There is a riddle of two doors, one leading to freedom and one to prison. There is one guard at each door. One guard always tells the truth, and the second guard always lies. You get to ask one question to either guard. What one question could you ask that, regardless of whether you ask the truthteller or liar, would determine which door leads to freedom?

After you figure that out, then you are well-prepared to read the Arizona Supreme Court’s decision holding that a claim for wrongful institution of civil proceedings can be based on a bar complaint. Or skip it and just realize that there is yet another reason for attorneys not to report bad conduct to the State Bar. There is more enjoyment in reading Justice Montgomery’s dissent:

The majority’s analysis demonstrates that textualism unmoored from original public meaning can produce results that conflict with a provision’s original meaning. And that is not how this Court interprets the law. Whenever the meaning of a provision is in question, it is critical to confirm the meaning at the time the provision was adopted.

And even more enjoyment comes from reading the article he cites: Lawrence Solum, Surprising Originalism: The Regula Lecture, 9 ConLawNOW 235 (2018). It’s free online.

link to opinion

link to Surprising Originalism

Two weeks ago, in the Mormon church case, the Arizona Supreme Court interpreted the clergy exception to the mandatory reporter statute. The supreme court noted that one of the many problems with the court of appeals’ decision was that the court conflated the statutory exception with the clergy-penitent privilege. Both the exception and the clergy-penitent privilege use the term confession, and the same definition applies. The clergy-penitent privilege was, however, irrelevant to the mandatory reporter exception.

This case is not about a duty to report. Here, Pastor Padron spoke with his co-pastor Rodriguez-Rameriz, his brother-in-law, and Padron recorded the conversation. Pastor Rodriguez-Rameriz acknowledged that he had abused Pastor Padron’s niece. Pastor Padron shared the recording with the victim’s family and other members. Pastor Rodriguez-Rameriz was prosecuted and sought to exclude the recording by claiming clergy-penitent privilege. The supreme court held the privilege did not apply. The conversation wasn’t a “confession,” but involved how the allegations would impact the congregation and the church, whether the victim’s family would report the abuse to law enforcement, and even whether Rodriguez-Rameriz should leave the state. Pastor Rodriguez-Rameriz was not there as a penitent seeking absolution, and Pastor Padron did not believe he was providing spiritual guidance or counseling. The privilege did not apply. We are reminded of Claudius’s rank offense: “My words fly up, my thoughts remain below. Words without thoughts never to heaven go.”

Last year, Division Two issued an astoundingly wrong decision in a Bisbee abuse case against the Mormon Church. Division Two ran headlong into the First Amendment. As we expected, the Arizona Supreme Court reversed. The case involves children who were sexually abused by their father, a border patrol agent. At one point, he confessed to a bishop about past abuse and was disciplined by another bishop. He was later arrested and took his own life while in jail. The children’s mother went to prison. The children were taken away and later adopted. The children then sued two church lay bishops and a Sunday school teacher. (The case against the Sunday school teacher is also pending at the Supreme Court.) Spurred on by an investigative journalist, the Church headquarters in Salt Lake responded to what it considered factual misstatements. There are common themes we see in these abuse cases. The perpetrator’s responsibility is largely ignored, a hindsight bias of “should have known” is created using “red flags,” and sentiment is brought into the courtroom. This includes exploiting ambiguities in church policies or doctrine while portraying the church as keeping secrets or a cover-up.

The mandatory reporter statute lists clergy as mandatory reporters. A.R.S. § 13-3620. But the statute includes a clergy exemption that, if the clergy member believes the communication was confidential under the concepts of their religion, the clergy does not have to disclose the communication. The exemption has five elements (1) a member of the clergy, (2) receives a confidential communication or confession, (3) in that person’s role as a member of the clergy, (4) in the course of discipline enjoined by the church, and (5) determines that it is reasonable and necessary within the concepts of the religion to do so. Division Two thought this was a jury question. The Arizona Supreme Court responded that the First Amendment forecloses any such inquiry. Unless there is evidence of fraud or collusion to avoid legal responsibilities, the church defines its clergy, confidentiality, the roles of the clergy, discipline, and whether withholding the report is reasonable and necessary within the concepts of the religion. These “beliefs” are very much grounded in and exist within the clergy’s mind. We hope clergy will report regardless, but courts and juries cannot police religious conscience.