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.

This opinion begins: “Heads up: if the Maricopa County Sheriff’s Office booked you into jail before September 9, 2024, it probably posted your mugshot, birthdate, and other personal information on its website without explaining in that public post that you hadn’t been convicted of a crime and were presumed innocent.” The court then explained that this was a false-light lawsuit and addressed whether the case was amenable to class-action status. The trial court denied class certification, and the court of appeals affirmed. The false light elements require plaintiff-specific facts, and Rule 23’s requirements of commonality and typicality were not met merely because the Sheriff published the mugshots and personal information. A few thoughts: if there was a need for a court to give a “heads up,” wasn’t that given years ago in the federal substantive due process case brought by the plaintiff? The opinion ends with emphasizing that the court has not decided whether the plaintiff or any other person has a viable claim against the Sheriff. One final point on style: we are concerned with the swagger, but we understand.

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This is a tort claim for wrongful institution of civil proceedings against the State Department of Child Safety. The case was decided on a motion to dismiss. The underlying custody dispute involved two children and the juvenile and family courts. DCS removed the children after each accused the other of wrongdoing. The dad absconded with the kids, and DCS tracked them down in Florida. The children were brought back. Eventually, after new information came to light, the juvenile court dismissed the dependency case against mom and returned the children to their mother. Feeling vindicated, mom then filed a lawsuit against DCS. Not so fast. The initial judgment of dependency established probable cause. Unless mom had facts showing the adjudication was procured by fraud, perjury, or other corrupt means, the claim failed. Mom alleged omissions are not enough. “Probable cause does not require DCS to disclose every fact that might undermine its position or to present a perfectly balanced narrative; it requires only an honest and objectively reasonable belief that removal and dependency can be established.”

Justice Montgomery and Justice Bolick disagreed. Montgomery would have the trial court not decide this on a motion to dismiss, but rather wait for a motion for summary judgment after the parties have gathered their evidence. He questioned the adequacy of DCS’s investigation after the children were picked up in Florida. Justice Bolick believed the DCS worker’s report to the court was misleading and incomplete, and that the case should move forward. He ended his dissent: “The majority knits the façade of a just result but not the reality. I believe Stephens’s claim against DCS, no matter how uphill the climb it faces, should be allowed to proceed; and, therefore, with great respect to my colleagues, I dissent.”  Justice Bolick’s dissent is an Aristotelian performative stage: logos, ethos, and pathos. But unconvincing to the majority of his colleagues.

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