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.

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.

link to opinion