Jurisdiction; Clergymen Privilege; Child Protective Services Law Mandated Reporting

Ivy Hill Cong. of Jehovah Witnesses v. Dep’t of Human Services, 2022 WL 1464353 (Pa. Cmwlth. 2022) (unreported), direct appeal, appeal docket 65 MAP 2022

In this original jurisdiction matter seeking a declaration that the clergymen privilege under the Child Protective Services Law (CPSL) applies to Jehovah’s Witnesses elders, the  Commonwealth Court dismissed for lack of jurisdiction because respondent Department of Health and Human Services (DHS) does not enforce the CPSL, and thus a declaration that the elders are “clergymen” as against DHS would not terminate the controversy, because proper application of Section of the CPSL requires a court or appropriate agency to review the communication at issue.  The court summarized the relevant statutory provisions at issue:

The goal of the CPSL is “to encourage more complete reporting of suspected child abuse” and, “to the extent permitted by this chapter, to involve law enforcement agencies in responding to child abuse[.]” 23 Pa.C.S. § 6302(b). To achieve that goal, the CPSL requires certain individuals, i.e., “mandated reporters,” to report suspected child abuse to DHS. 23 Pa.C.S. §§ 6311(a), 6313(a). Mandated reporters include a “clergyman, priest, rabbi, minister, Christian Science practitioner, religious healer or spiritual leader of any regularly established church or other religious organization.” Id. § 6311(a)(6). A willful failure to report may result in criminal penalties. Id. § 6319.

Section 6311.1(a) of the CPSL states that “the privileged communications between a mandated reporter and a patient or client” of said reporter (1) do not apply to a situation involving child abuse and (2) would still obligate a mandated reporter to report to DHS. 23 Pa.C.S. § 6311.1(a). This rule is subject to Section 6311.1(b), which states that “confidential communications made to a member of the clergy are protected under” the evidentiary privilege of 42 Pa.C.S. § 5943. Id. § 6311.1(b); see also id. § 6381(c) (stating that privileged communications “between a minister and a penitent” may be “grounds for excluding evidence at any proceeding regarding child abuse or the cause of child abuse”).

Under Section 5943, clergymen cannot be compelled to disclose information acquired “from any person secretly and in confidence … in any legal proceeding, trial or investigation before any government unit.” 42 Pa.C.S. § 5943. Section 5943 excludes two classes of clergymen: those who are either (1) self-ordained or (2) members of religious organizations that classify non-leaders as clergymen or ministers. Id. In sum, all clergymen may invoke the Section 5943 privilege, unless they fall within either of the two excluded classes. Id.

Slip op. at 2-4 (footnote omitted).

Ivy Hill Congregation of Jehovah’s Witnesses (Ivy Hill) filed a petition for review in Commonwealth Court against DHS seeking (1) a declaration that Ivy Hill’s elders qualify as “clergymen” under Section § 6311.1(b)(1) of the Child Protective Services Law (CPSL), which relieves mandated reporters of a statutory duty to report suspected child abuse to DHS if the report is based on a confidential communication subject to the evidentiary clergymen privilege found in Section 5943 of the Judicial Code, or, (2) alternatively if the Court holds that Ivy Hill’s elders are not “clergymen” under Section 5943, a declaration that Section 5943 is unconstitutional. The court summarized the relevant facts as follows:

Ivy Hill, located in Philadelphia, Pennsylvania, is a congregation consisting of 140 congregants who follow the tenets of the Jehovah’s Witnesses organization. Every Jehovah’s Witness congregation is led by a “body of elders,” a group of five to seven volunteers. All elders receive ecclesiastical training to fulfill their responsibilities for hearing confessions and providing spiritual counseling. Id. at 23-24. Only elders are authorized to hear and respond to a congregant’s confession of sin, and elders are obligated to maintain the confidentiality of any such confession. Id. at 25-30. Because a congregant could confess to child abuse, Ivy Hill filed a petition for review seeking the declaratory relief set forth above.

Slip op. at 2. DHS filed preliminary objections, asserting that Ivy Hill (1) lacked standing; (2) failed to join indispensable parties; (3) failed to exhaust administrative remedies; (4) is not entitled to relief on the first count because the requested relief would not terminate the controversy; and (5) is not entitled to relief on the second count. In Congregation of Jehovah’s Witnesses v. Dep’t of Hum. Servs., No. 316 M.D. 2020 (Pa. Cmwlth. June 17, 2021) (unreported) (en banc) (Ivy Hill I), Commonwealth Court overruled DHS’s preliminary objections and denied summary relief on the basis that no evidentiary record existed addressing whether Ivy Hill’s elders fell within the scope of Section 5943. Following discovery, Ivy Hill filed a motion for summary relief. The court summarized the parties’ arguments as follows:

    1. DHS’s Arguments

First, DHS argues that it is not antagonistic to Ivy Hill. DHS’s Br. in Opp’n at 7. DHS reasons that it does not oppose, has not sued, and has not threatened to sue Ivy Hill because DHS cannot enforce the CPSL’s criminal penalties at 23 Pa.C.S. § 6319. Id. at 7-9. DHS suggests that Ivy Hill should have named the Commonwealth or the Office of Attorney General (OAG) as a respondent if Ivy Hill was concerned about potential legal action by the Commonwealth. Id. at 9-11. Second, DHS contends that because it does not investigate alleged violations of the CPSL, DHS is not the appropriate respondent. Id. at 11-14. Because DHS is not the appropriate respondent, DHS claims that it is “not the proper party to have a declaration entered against it,” and therefore this Court should dismiss Ivy Hill’s petition for review. Id. at 14. Third, DHS asserts that Ivy Hill improperly seeks broad declaratory relief in the form of an advisory opinion and to validate a defense to a potential future lawsuit. Id. at 14-17. Fourth, DHS argues that even if this Court has jurisdiction under the DJA, Ivy Hill’s suit is barred by the statute of limitations. Id. at 17-19.

    1. Ivy Hill’s Arguments

Ivy Hill counters that DHS does not dispute the facts or law presented in Ivy Hill’s motion for summary relief. Ivy Hill’s Reply Br. at 2-4. In any event, Ivy Hill construes DHS’s arguments as a rehash of DHS’s arguments in support of its preliminary objections, which the Ivy Hill I Court rejected. Id. at 5-6.

Regardless, on the merits, Ivy Hill first argues that DHS is an antagonistic party because DHS will not opine on whether Ivy Hill’s elders are clergymen under the CPSL. Id. at 7. In support, Ivy Hill emphasizes that because DHS is the only Commonwealth agency receiving the mandated CPSL reports, DHS is the only proper respondent. Id. at 9-10. Second, Ivy Hill contends that DHS is a proper respondent notwithstanding DHS’s lack of power to criminally investigate alleged CPSL violations. Id. at 11-12 (discussing primarily Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013), Office of the Governor v. Donahue, 98 A.3d 1223 (Pa. 2014), and Public Advocate v. Brunwasser, 22 A.3d 261 (Pa. Cmwlth. 2011)). Third, Ivy Hill maintains that it filed this DJA action to ensure its elders could “comply with a criminal law [and] not to defeat some pending or forthcoming civil action.” Id. at 16 (emphasis in original). Fourth, Ivy Hill challenges DHS’s statute of limitations argument on numerous grounds. Id. at 16-25.

Slip op. at 5-6.

Commonwealth Court declined to exercise jurisdiction under the Declaratory Judgement Act and dismissed Ivy Hill’s petition for review and motion for summary relief for lack of jurisdiction. Commonwealth Court found that no imminent and inevitable litigation existed to warrant its exercise of jurisdiction, reasoning that:

The record does not establish that DHS opposes, has sued, or threatened to sue Ivy Hill. Similar to Ruszin, in which the Court held the petitioner did not have an “antagonistic claim indicating imminent [and] inevitable litigation,” nothing of record here establishes or otherwise indicates imminent and inevitable litigation between DHS and Ivy Hill. Cf. Ruszin, 675 A.2d at 371. Indeed, as discussed in further detail below, DHS cannot even initiate litigation regarding the CPSL. Therefore, we agree with DHS that we may decline to exercise our jurisdiction under the [Declaratory Judgment Act] and dismiss Ivy Hill’s petition for review. See Brouillette, 213 A.3d at 357.

Slip op. at 8. Commonwealth Court additionally explained that “requested declaratory relief binding DHS to an interpretation that Ivy Hill’s elders qualify as ‘clergymen’ would not terminate the ongoing controversy because the declaration would not bind the Commonwealth or its agencies designated to enforce the CPSL.” Slip op. at 9. Moreover, Commonwealth Court concluded that relief against DHS would not terminate the controversy because the CPSL reporting privilege implicates the evidentiary privilege, which “requires a court or agency to review the communication at issue.” Id.

Ivy Hill appealed to the Supreme Court. On April 19, 2023, the Supreme Court issued an order granting oral argument limited to the following issue as phrased by Ivy Hill:

Does the Commonwealth Court’s opinion dismissing this matter violate the coordinate jurisdiction and law of the case doctrines, where a previous en banc panel in the action presented with identical legal questions reached a contrary conclusion and the only intervening change was that the allegations in the underlying pleading were established as undisputed facts?

Docket Sheet at 7.

For more information, contact Kevin McKeon or Dennis Whitaker.