from Tharp v. Hillcrest Baptist Church of ColumbusDecided Dec. 27 by the Ohio Court of Appeals (Judge Keith McGrath, joined by Judges Julia Dorian and Michael Mantel):
This is an appeal by plaintiff-appellant, Kevin Tharp, from a decision … in favor of defendant-appellants Hillcrest Baptist Church of Columbus, Ohio … and [Pastor] Timothy W. Lee…
According to Appellant’s Amended Complaint, “On August 21, 2017, a Reverend Pastor Lee of the * * * Church held a private conference in which ‘[Pastor] Lee asked [appellant] About a past encounter with another Hillcrest Baptist church more than thirty years ago.'” The meeting was requested because a current attendee of the church, “now an adult, recently recognized [appellant] who had sexually assaulted her at the age of fifteen.” Although appellant’s complaint “flatly describes this sexual assault as a ‘past encounter,’ [appellant] Admitted to discovering a pattern of sexual abuse of young boys.”
During his deposition testimony, appellant “admitted to previously molesting the then-teenager.” Specifically, Appellant testified that he “[g]Roin Area,” and admitted that he had touched the man’s penis. [appellant] Abused.” …
The trial court observed that “[d]Despite admitting to sexually abusing the minors while they slept, the “appellant” took exception to the conduct being molested. Asked during his deposition whether he considered his conduct to be “harassment,” appellant responded “[n]o,” stating “there was no sexual intent.” Appellant characterized his intent as “[s]How affectionate.” When asked why he touched the groin, the petitioner said: “The most pleasurable part for a man of the male species.”
After confronting appellant “with this history, Pastor Lee held an emergency meeting at the church to discuss [appellant’s] admitted to a history of sexual abuse.” During that meeting, “Pastor Lee informed the congregation that he would consult with professionals at NetCare, who gave a different opinion. [appellant] had an incurable disease, and his behavior in church was like grooming children.” … [T]The Hillcrest Board of Trustees, referred to as the ‘Vision Team’ at Hillcrest * * * called a meeting and voted to remove [appellant] From church leadership and church membership.” …
The appeals court held that a secular American court had no jurisdiction to excommunicate Tharp:
[M]”[c]Beyond the scope of review by secular tribunals are church discipline, ecclesiastical government, or ‘the standard of morality required of church members’. Expulsion from church membership was in accordance with church by-laws or regulations.”
Upon review, we find no error with the trial court’s determination that, based on the allegations presented, it was “unable to adjudicate the presence or absence of circumstances so inconsistent with the Articles of Faith as to require systematic deviations from ordinary decision-making. Internal bi- Isle” or that it would not be able to “assess ultimate fundamental religious questions concerning membership and participation” under the neutral principle of law. As recognized by the trial court, the instant dispute, involving questions of the availability of church discipline and the “theological weight given to violations of particular beliefs” would necessarily require review of religious issues on which the court lacked subject-matter. Jurisdiction
And it rejected Tharp’s defamation claim:
The trial court found that, even assuming appellant could demonstrate the statements at issue were defamatory, they were made pursuant to a qualified privilege. In finding that appellants were protected by a qualified privilege, the trial court noted that the summary judgment evidence indicated that “Pastor Lee, as the leader of his congregation, brought [appellant’s] Church leadership admitted and interacted with the parents of the children [appellant]The trial court held in part: “Clearly, Pastor Lee had a duty to make this disclosure in order to protect the members of his congregation. The fact that the individual recognized is particularly true. [appellant] was concerned that [appellant] He engaged in the same grooming behavior with children in the congregation that he experienced as a teenager.” The trial court also found “Pastor Lee did not share [appellant’s] Misconduct prior to abusing children outside of those who had a legitimate interest to know Finally, the trial court addressed the issue of malice, finding “there is no record evidence that Pastor Lee’s statements were made with knowledge that the statements were false or reckless. Ignore their truth or falsity.” …
It’s okay that”[t]The purpose of a qualified privilege is to protect speakers in situations where full and limited communication is required on a matter in which the parties have an interest or duty.” … [W]e finds no error in the trial court’s determination that “Pastor Lee had a duty to make these disclosures to protect members of his congregation” (ie, the statements at issue were protected as communications in which the speaker had an interest in the content and recipients who shared a common interest in the communications). Duty to inform)…
Further, we agree with the trial court that the summary judgment evidence did not raise a genuine issue of material fact as to whether appellants acted with malice. Under Ohio law, where a defendant has a qualified privilege regarding statements, “that privilege may be defeated only by a clear and convincing showing that the communication was made with actual malice.” In such a “qualified privilege case, ‘actual malice’ is defined as acting with knowledge that the statements are false or acting with reckless disregard for their truth or falsity.” …
As previously discussed, the statements at issue were motivated by a “church interest,” i.e., an underlying church disciplinary matter, as well as involving an interest in the protection of minors. Moreover, the statements at issue had a “factual basis” based on appellant’s own admissions about his past activities.
The court rejected Tharp’s claim for “breach of privacy”:
Although appellant equates the conduct at issue with a clergyman’s obligation to maintain the secrecy of a penitent’s confession, the summary judgment facts do not support such a characterization. Specifically, the undisputed facts do not indicate that petitioner sought Pastor Lee for counseling or confession of past sins; Rather, Pastor Lee, after learning of appellant’s past behavior from a current congregant, sought appellant to inquire about the veracity of those allegations. As noted by appellants, the summary judgment evidence does not indicate that appellant sought spiritual counseling, nor did Pastor Lee provide evidence of confessions or confidential communications made for religious counseling. Accordingly, the trial court did not err in granting summary judgment in favor of appellees on appellees’ claims for breach of confidentiality.
And the court rejected Tharp’s intentional infliction of emotional distress claim:
[A]Appellant claims that he suffered emotional distress as a result of Pastor Lee telling the congregation about his terminal illness when the only support for this contention was “supposedly unnamed ‘professionals’ who had never seen or interacted with him. [appellant]”
The summary judgment record fails to create a genuine issue of material fact that the conduct arising from an internal church investigation reached the level of extreme and outrageous conduct necessary to support a claim of intentional infliction of emotional distress, or that appellants’ intent to cause appellants’ emotional distress based on concerns for the protection of minors. Whether the record presents a genuine issue of material fact as to whether there was Moreover, we have previously determined, as did the trial court, that the communications at issue were protected by a qualified privilege.
Congratulations to Melvin Davis (Reminger Co.), who represented the defendants.