NEXT CASE ON THIS MORNING'S DOCKET IS WOODARD VERSUS JUPITER CHRISTIAN SCHOOL. GOT SOME VISITORS COMING IN , SO WE WILL WAIT UN TIL THEY ARRIVE. GOOD MORNING, MR . BRIAN. -- MR . BRYAN. I WANT TO WEL COME TO THE COURTROOM THE TEACHERS AND STUDENTS THAT ARE PARTICIPATING IN THE SUPREME COURT 'S SPONSORED APPELLATE M OOT COURT COMPETITION, ANDSOME OF T HEM WILL BE ARGUING AFTER YOUR CASE. IF YOU WANT TO STAY AROUND AND WATCH THEM. ALL RIGHT. THE PAR TIES READY? MR. BOOTH.

YES, MA 'AM . MAY IT PLEASE THE COURT. MY NAME IS WILLIAM BOOTH. I AM WITH LEGAL AID SOCIETY OF PALM BE ACH COUNTY O N BEHALF THE PETITIONERS JEFFREY WOODARD AND C A ROL WOODARD. THIS SUIT AR ISES FROM AN EMOTIONAL DIST RESS CLAIM ARISING OUT OF THE BR EACH OF CONFIDENTIAL TO A CLERGYMAN . WE AS K THAT THE COURT CERTIFY AND THE REASO N IS AS FOLLOWS --

JUSTICE: WHAT IS THE BASIS OF THE DUTY? ANOTHER DUTY , JUDGE , I S GENERAL COMMON LAW DUT Y, THE DUTY OF FIDUCIARY RELATIONSHIP DEVELOPING HERE BETWEEN THE CHILD AND THE CHAPLAIN. WE D O INARTFULLY PLEAD IN THE COMPLAINT THAT WE SAY THE BREACH IS BASED ON A FEDISH YEAR AND STATUT ORY DUTY - - FIDUCIARY AND STATUTORY DUTY. WE PRIM ARILY RELY UPON WHEN THE CHAPLAIN APPROACHED THE CHILD, OFFERED CONFIDENCE AND TRUST. THE CHILD SEND THE TR UST AND THEN THE CHAPLAIN BETRAYED THAT TRUST.

JUSTICE: SO WHAT IS THE COMMON LAW CASE THAT YOU RELY ON FOR SUPPORT OF A COURT ACTION FOR BREACH OF FIDUCIARY DUTY OF A CHAPLAIN?

WE RELY ON THE GRACEY VERSUS E CCO CASE.

JUSTICE: THAT WAS A GENERAL STATUTE DEALING WITH SERVICES, LICE NSING AND THE SERVICES RENDERED BY THE COUNSELORS.

YOU ARE ABSOLUTELY RIGHT. IT DID, BUT UNDER THE GENERAL DUTY LAW OUT OF THIS COURT , AND THE CASEY B E LIEVE RESPONDENTS HAVE CITE D THE CLAY CASE . THE DUTY DOESN'T HAVE TO COME FROM LEGISLATIVE ENACTMENT . IT CAN COME FROM CASE LAW. IT CAN COME FROM FACTS AND CIRCUMSTANCES ARISE ING IN THE CASE. IN THIS CASE THE COURT ISSUED DOE AND THE RELATIONSHIP DUTY. THAT THE SOURCE CAN BE LEGAL , MATERIAL, MOR AL. ALL THAT IS NEEDED IS CONFIDENCE IS OFFERED , TRUST IS SEND AND THERE HAS BE EN A BETRAYAL OF THE TRUST. AND YOU HAVE A BREACH DUTY , OF FIDUCIARY DUTY. SO WE ARE RELYING MORE SO ON THE COMMON LAW . CAN CLERGY , COMMUNICATIONS WITH CLERGY ARE NOT HING BUT CONFIDENTIAL AND IF YOU LOOK AT THAT STATUTE COMPARED TO THE OTHER , THERE ARE NO EXCEPTION S TO , IN I N THAT STATUTE , RATHER THAN TO CITE THE PA TIENT PRIVILEGE AND THAT PRIVILEGE CAN BE WAIVED , SO IT IS A STRONG POLICY IN THIS STATE, EVIDENCED B Y THE LEGISLATURE.IT IS AN EVI DENTIARY PROVISION , BUT IT S T ILL SHOWS THAT IT A V ALUED RELATIONSHIP TO THE STATE.

CHIEF JUSTICE: BUT YOU ARE NOT RELYING ON THE EVIDENTIARY STATUTE TO GIVE R ISE TO A DUTY?

NO. NO. I THINK IT I S JUST , SHOWS THAT, WHAT THE POL ICY IS HERE AND THAT IT IS IMPORTANT TO THE PEOPLE IN THIS STATE.

JUSTICE: WHILE YOU OR THAT POLI CY ISSUE , COULD YOUTAKE A MINUTE OR TWO , TO ADDRESS THE ISSUE OF WH Y WE SHOULD TR EAT THIS AS AN ISSUE OF GREAT PUBLIC IMPORTANCE. WHAT WE SEE HAPPENING OUT THERE IN THE LAST SE VERAL YEARS IS TO A GREAT EXTENT , BECAUSE OF THE IMPACT OF THE"IMPACT RULE" , THAT A NUMBER OF COURTS ARE CERTIFYING QUESTIONS LIKE THIS , AND ORDINARILY A FTER ESTABLISH ING PRINCIPLES OF LAW THAT CONTROL CA USE OF ACTION SUCH AS THE "IMPACT RULE", THATWE LE T THE TRIAL COURTS AND THE DISTRICT COURTS O F APPEAL, THEN, SORT THAT OUT AND APPLY THAT LAW. WHY ISN'T THIS JUST A CASE WHERE THAT IN DEED HAS HAPPENED AND IF WE AC CEPT REVIEW IN THIS CASE , THEN IN ANY IN STANCE IN WHICH THE"IMPACT RULE" SHOULDN'T APPLY AND WE ARE GOING TO END UP WITH ALL OF OUR CIVIL CASELOADS UP HERE BEING THAT WAY, SO WOULD YOU A DDRESS THAT FOR A MI NUTE , BECA USE WE INDEED , IT IS ALMOST AS IF THE FLOODGATES HAD BEEN OPENED IN THE LAST SEVERALYEARS , AND COURTS BELOW ARE SAYING, W ELL , THERE WOULD BE CAUSE OF ACTION BUT THE"IMPACT RULE" AS WE INTERPRET IT , PREVENTS IT , BUT WE WILL JUST CERT IFY THEQUESTION TO THE FLORIDASUPREME COURT . THEY DO N'T HAVE ANYTHING TO DO UP THERE. AND S O HELP SPEND A COUPLE OF MINUTES, WHY SHOULD WE TAKE THIS PARTICULAR CASE AND TREAT IT AS AN ISSUE OF GREAT PU BLIC IMPORTANCE ?

I THINK THE QUESTION SHOWS THE PROBLE M WITH THE"IMPACT RULE" AS THE STATEOF LAW IN THIS STATE. THAT IS THE WAY IT S JUDGE FARMER DOWN BELOW I N HIS DISSENTING OPINION SHOWS THAT THERE IS PROBLEMS HERE.I THINK INTERESTING EN OUGH , I KNOW YOU HAVE THE CASE BEFORE YOU AND THER E IS NO DECISION BEFORE YOU, BUT THE SECOND DISTRI CTS -- DISTRICT TREATS THE GR ACIE CASE, IN FACT THE "IMPACT RULE" IS NOT APPLICABLE. THE FOU RTH HAS SAID THAT THE"IMPACT RULE" JURISPRUDENCE F ROM THIS COURT REQUIRES ME TO AFFIRM THE TRIAL COURT 'SDISMISSAL AND CERTIFY IT TO THIS COURT SO IT SHOWS RIGHT THERE THAT WE MIGHT POSSIBLY HAVE A CONFLICT.

JUSTICE: THE SECOND DISTRICT HAD ANOTHER VERY SPECIFIC STATUTE TO RELY O N IN THAT CASE.

I AGREE.

JUSTICE: AND HERE AS YOU HAVE ACKNOWLEDGED IN ANSWERING JUSTICE PARIENTE 'SQUESTION THAT THAT IS NOT THE CASE.

RIGHT.

JUSTICE: SO AREN'T WE REALLY THEN ON SORT OF A SLIPPERY SLOPE OF HAVING EVERY DISTRICT COURT , EVERYTIME A CASE COMES BEFORE THEM, WHERE THE "IMPACT RULE" PRE VENTS THE CAUSE OF A CTION FROM GOING FURTHER, OF DO ING WHAT THE COURT DIDHERE?

WELL , I THINK THAT THAT IS WHY IT IS OF GREAT PUBLIC IMPORTANCE. IT IS ALMOST AS IF THE LOWERCOURTS ARE SAYING, PLEASE HELP US OUT. IT I S AS IF JUDGE MAY , WHO WROTE THE MAJORIT Y OP INION BELOW , SA ID I AM STRUGGLING WITH THIS CASE, MYSELF. I NEED TO SEND THIS TO T HIS COURT. IF WE COULD HAVE SOME SORT OF A BRIGHT-LINE RULE ON THE"IMPACT RULE" THAT SAYS E ITHER --

JUSTICE: HOW MA NY CASE S ARE WE GOING TO HAVE AR OUND THE STATE OF FLORIDA.

THAT IS A GREAT QUESTION.

JUSTICE: WHERE THE CHAPLAIN AND A PRIVATESCHOOL IS INVOLVED WITH A SITUATION LIKE THIS, SO HOW IS THIS , THESE LIMITED CIRCUMSTANCES OR FACTS OF THIS CASE, REALLY , GOING T O GREATLY IMPACT THE REST OF THE STATE OF FLORIDA?

WELL, IT DOES BECAUSE OF THE RELATIONSHIP O F THE CLERGY WITH PENETENT AND THE IMPORTANCE OF RELIGION TO THE PEOPLE IN THIS STATE AND THE POLICY IN THIS STATE OF THE PEOP LE'S EMOTIONAL WELL-BEING. WE WANT T O EN SURE THE ME NTAL HEALTH AND EMOTIONAL WELL-BEING. THIS ISN'T COUNSELING FOR THE POOR AND DISADVANTAGED. THIS IS AN OPPORTUNITY TO GO AND RE CEIVE SOME SPIRITUAL GUIDANCE AND DEAL WITH THEIRTROUBLES. I THINK IF YOU DON'T ACC EPT JURISDICTION, EVEN IF YOU HAVE IT IN OR DERS , I THINK YOU CAN STILL D E CLINE , AND IF YOU DON'T YOU ARE SAYING TO PEOPLE WHO RELY ON CLERGY , COU NSEL, THAT THIS RELATIONSHIP IS NOT AS IMPORTANT AS, SAY, THE PSYCHOTHERAPIST RELA TIONSHIP THAT YOU HAVE I N GRACIE.

CHIEF JUSTICE: GETTING TO , ASSUMING THAT WE TAKE THECASE, GETTING TO THE MERITS OF THE "I MPACT RULE" , JUDGE FARMER SEE MS TO IMPLY THAT THE "IMPACT RULE" , REAL LY, WAS NEVER DESIGNED TO BE USED IN THESE S ITUATIONS WHE RE YOU ARE ONLY GOING TO HAVE PSYCHOLOGICAL DAMAGES . THAT IS WHEN YOU HAVE GOT A B REACH OF FIDU CIARY RELATIONSHIP. I MEAN, THERE MIGHT B E SOME ECONOMIC HARM , BUT JUST MIGHT BE OTHER TYPES OF EXCEPTIONS THAT WE HAVE RECOGNIZED THAT THIS IS REALLY THE K IND OF TORT THAT IS , DOESN'T, THERE IS NO IMPACT INVOLVED. HOW , TELL ME , TH OUGH , TO MEAS I LOOK BACK AT SOME OF THE EAR LIER CASES , IT SEEMS THAT IT REALLY WAS WHY THE"IMPACT RULE" WAS , EV OLVED , WAS BECAUS E THERE WAS SOME QUESTION ABOUT SOME OF THESECAUSE OF ACTION , LIKE A TELEGRAM NOT GE TTING TO APERSON, SO HOW DO YOU DISTINGUISH THOSE, THE EARLIER CASES AND THEN WHYIN THIS SITUATION , SHOULDN'TTHE "IMPACT RULE" CONTINUE TO APPLY?

I THINK FOR OUR CASE, WE ARE SO CONSISTENT WITH THE GRACIE CASE, IT IS NOT A GREAT LEAP THAT THIS COURTWOULD HAVE TO TAKE TO FIND IN MY CLIENT'S FAVOR. IT IS REALLY A NARROW STEP. IT IS A COUN SELING RELATIONSHIP, A CONF ESSION AL WHERE MY CLIENT HAS CONFESSED SIN I N HIS AYE. SEEKING SPIRITUAL ADVICE, THE SAME TY PE OF THIN G THAT HAPPENED IN THE GRACIE CASE. WE ARE JUST GOING FROM THIS COURT'S DECISION IN GRACIE SAYING WE HAVE THE SAME POLICY CONCERN, THE SAME TYPE OF FACTS , DIFFERENT RELATIONSHIP CLERGY WITH PENETENT, THE SAME APPLICATION WHERE THERE WAS NO PHYSICAL IMPA CT IN THE GRACIE CASE SHOULD CERTAINLY APPLY IN OUR CASE.IF YOU APPLIED THE EARLIER CASES OF SAUN DERS AND KIRKSEY, WE WOULDN'T BE HERE.

JUSTICE: LET ME LINK ASTEP. IS YOUR CONCERN THE DISCLOSURE TO THE OTHERAUTHORITIES IN THE SCHO OL?

I AM SORRY ?

JUSTICE: IS YOUR CONCERN PARTICULARLY ABOUT MR . BELLHORNE , THAT HE DISCLOSED TO OTHER AUTHORITIES IN THESCHOOL?

HE PROMISED TO THE CHILD THAT HE WOUL DN'T RELAY THAT INFORMATION TO ANYO NE, SO, Y ES THAT , I S A CONCERN.

JUSTICE: SO IF I T AKE IT IN A CH URCH RELATIONSHIP, IF SOMEBODY WERE TO DO CONFESSION TO A BREEZE THEAND THE PRIEST TOLD THE BISHOP, YOU WOULD SAY THEREWOULD BE A CAUSE OF ACTION FOR DISCLO SURE OF THAT BEYOND THAT RELATIONSHIP.

AS AGAINST , YOU ARE TALKING --

JUSTICE: THE COURT SHOULD INTERVENE IN THIS ACTION.

YES, WE ARE, BECAUSE WHAT HAPPENED HERE IN THIS CASE IN THE FACTS OF THIS CASE, THE CLERGY, THE CHAP LAIN SAID I WOULD LIKE TO COUNSEL YOU ON YOUR SE XUAL ORIENTATION.I WOULD LIKE TO TALK TO YOUABOUT THAT.THAT IS THE ALLEGATION . AND OFFERS THE TR UST TO THE CHILD AND OFFERS THEOPPORTUNITY TO TALK ABOUT A SIN TO THIS C HILD AND HE PROMISES NOT TO DISCLOSE IT TO ANYONE. THAT IS THE FIDUCIARY FACTS OF THIS CASE THAT RESULTED IN TALKING ABOUT THE JU PITER CHRISTIAN MINISTER. THE PROBLEM THERE, TOO , IS THAT JUPITER CHRISTIAN SENT THE CHAPLAIN TO THE C H ILD TO COUNSEL HIM ON THIS ISSUE , AND - -

JUSTICE: YOU HAVE PLED , YOU HAVE CAUSE OF ACTION P LED FOR FRAUDULENT INDUCEMENT , MISREPRESENTATION , BREACH OF CONTRACT. YOU HAVE COMMON LAW ACTION NOT PLED FOR INV ASION OF PRIVACY.THERE ARE PLENTY OF REMEDIES AVAILABLE FOR ALL OF WHATYOU ARE TA LKING ABOUT, BUT THE PARTIC ULAR ONE IS THEBREACH OF A FIDUCI ARY DUTY , RELYING ON GRACIE.

AND THAT IS THE ONLY COUNT THAT IS UP HERE.

CHIEF JUSTICE: JUSTICE LEWIS HAS A QUESTION.

I HAVE CONCERNS WITH EXTENDING GRACIE INTO THIS KIND OF SIT UATION AND I SEE VERY DIST INCT DIFFERENCES WITH DOE VE RSUS E V ANS, SO MY CONCERN IS WE START DOWN THIS PA TH. THIS IS A TEACHER, A SCHOOL SITUATION, CORRECT?

THAT'S RIGHT.

JUSTICE: AND SO WE HAVE PUBLIC SCHOOLS ALL OVER THE STATE.WE HAVE THESE KINDS OF RELATIONSHIPS , EDUCATIONAL RELATIONSHIPS , COUNSE LORS , AND I A M HAVING TR OUBLE EQUATING ALL OF T HOSE , BECAUSE IF WE DO IT , IF WE SAY IT HAS NO APPLICATION , UNDER THESE CIRCUMSTANCES, THEN IT WOULD SEEM IT WOULD HAVE NO APPLICATION TO ANY OTHER SITUATION WITH TEACHERS . A TEACHER SITS DOWN AND WE ARE GOING TO COUNSEL ABOUT GRANDZ ALL OF THOSE KINDS OF THINGS AND THEN THAT IS -- GRADES AND ALL OF THOSE KINDS OF THINGS AND THEN THAT IS REL EASED I N SOME FASHION, SO IT SEEMS TO METHIS IS REALLY GOING WAYBEYOND WHERE WE WERE WITH GRACIE WHICH HAD THE PARTICULAR STATUTORY DUTY , DOE VER SUS EVANS , WH ICH WAS AN ORGANIZED M A RITAL COUNSELING CIRCUM STANCE, SO DOESN'T THIS REALLY TAKE US IN A DI RECTION FA R, FAR BEY OND WHERE WE HAVE TREADEDBEFORE?

NO, IT DOESN'T, AND IDON'T THINK THIS COURT NEEDSTO EVEN GO THAT FAR . AS I READ DOE , THAT IS A BROAD OP INION IN THAT FIDUCIARY RELIES SHIPS CAN BE DEVELOPED FROM ANY SO URCE. LEGAL , M ORAL SOU RCES , THE SOURCE IS IMMATERIAL . A LL THAT WAS NEEDED IN THOSE OPINIONS AS REITERATED IN GRACIE IS THAT THERE NEEDED TO BE A CONFIDENCE PROPOSED IN ONE AND AC CEPTED BY ANOTHER AND OF USE, SO YOU COULD SAY THAT JUST A TEACHER/STUDENT RELATIONSHIP COULD BE FIDUCIARY IN N ATURE , BUT W E ARE NOT ASKING YOU TO GO THAT FAR. LIMIT IT TO THE FACTS WITH A CLERGY AND A CHILD HERE, A L ONG RECOGNIZED RELATIONSHIP WHERE CONVERSATIONS WITH YOUR CHAPLAIN ARE PRIVATE. BY NA TURE I T IS FIDUCIARY , AND ON TOP OF THAT YOU HAVE THE CHAPLAIN HEAR, SAYI NG TO AND PROM ISING TO THE CHILD THAT I AM NOT GOING TO T ELL ANYONE, AND THUS YOU HAD THAT FIDUCIARY RELATIONSHIP HERE. I THINK THAT YOUR EXAMPLE WAS IF A TEACHER WAS COUNCILING ON GRADES , BUTTHERE IS NO TRUST IMP OSED THERE. THERE IS NO CONFIDENCE.

JUSTICE: SECRECY IS THE TRUST, THE PRIVACY OF IT , THAT I WOULD RELATE THAT TO A NEIGHBOR, BOY, HE IS STRUGGLING IN SCHOOL THAT , IS A RELEASE OF THAT KIN D OF INFORMATION , AND THAT IS A CONCERN OF GOING FAR BEYOND WHERE BOTH GRACIE AND DOE VERSUS EVANS WERE.

AGAIN, WE DON'T THINK YOUNEED TO G O THAT FAR , BUT LOOKING AT THE CHAPLAIN PENETENT RELATIONSHIP , THERE IS A LONG STANDING HISTORYTHERE, RECOGNITION OF CONFIDENTIALITY, AND IT SUPPORTS, YOU WOULD AGAIN BE SUPPORTING THE LEGISLATIVE POLICY IN 95.05 THAT THESE RELATIONSHIPS ARE CONFIDENTIAL IN SEEKING SPIRITUAL ADVICE . JUST JUST I AM SE NSING A CONTRA --

JUSTICE: I AM SENSING A CONTRADICTION IN YOUR ARGUMENT, BUT EARLIER YOU WERE NOT DEPENDING ON 990.505 AND NOW YOU KEEP REFERRING TO 90.505 , AND AS I SOUNDS IT THE FIDUCIARY D UTY THAT YOU ASSERT HERE IS A COMMON LAW DUTY SEPARATE AND APART FROM 90.505.

THAT IS CORRECT.

JUSTICE: SO WHAT HAPPENSIF A ST UDENT IN A HIGH S CHOOL ST EALS PROPERTY FROM ANOTHER S TUDENT 'S LOCKER. WEEKS LATER FEELS GUILTY ABOUT IT AND WANTS TO TALK TO HIS U NCLE AND SAYS , UNCLE, I HAVE THIS PROBLEM, AND I JUST WANT TO CONFIDE IN YOUTHIS, AND G IV E ME SOME ADVICE. I ST OLE SOME PROPERTY , AND A COUPLE OF D AYS LATER THE UNCLE GOES TO THE PRINCIPALOF THE SCHOOL AND SAY S WE WANT TO MAKE RE PARATION. MY NEPHEW HAS STOLEN SOME PROPERTY AND HE WANTS TO GIVE IT B ACK BUT I WANT YOU TO KNOW THE SITUATION. THE PRINCI PAL SAYS WE CAN'T HAVE THAT . WE HAVE A ZERO TOLERANCE POLICY AT THIS SCHOOL.WE ARE GOING TOECTS PELL -- TO EX PEL HI M. DOES NOW THE STUDENT HAVE A CAUSE OF ACTION AG AINST HIS UNCLE FOR REVE ALING THAT CONFIDENCE?

IF YOU LOOK AT THE FACTS IN OUR CASE.

JUSTICE: LE T'S ST ICK TO MY HYPOTHETIC AL.

I WOULD SAY NO.

JUSTICE: YOU SAY NO WHY?

BECAUSE THERE IS A CRIME INVOLVED.

JUSTICE: BUT THERE IS AN INDIVIDUAL YOU SHALL Y EAR DUTY, ACCORDING TO YOUR ARGUMENT, A FIDUCIARY DUTY, A CONFIDENCE, IS THERE ACRIME EX CEPTION TO THE EXCEPTION ?

I AM SORRY TO INTERRUPT YOU. THE CHAP I KNOW DIDN'T SAYTO THE CHILD I AM NOT GOING TO TELL ANYONE UNLESS YOU COMMIT A CRIME T MAKES COMMON LAW SENSE. AND I T HINK IN YOUR EXAMPLEAS WELL THERE , IS NO CONVERSATION OR AGREEMENTBETWEEN THE PA RTIES THAT WHAT I AM TELLING YOU IS PRIVATE AND YOU WON'T BE TELLING IT .

JUSTICE: FROM WHAT I UNDERSTAND IN YOUR ARGUMENT HAD, THIS FIDUCIARY DUTY DOES NOT REQU IRE A PROFESSIONAL RELATIONSHIP . IT COULD BE A FRIENDSHIP OR A FAMI LY RELATIONSHIP AS LONG AS CONFIDENCE IS REPOSED FROM ONE TO THE OTHER .

THAT SEEMS TO BE THE LAWIN THIS STATE.

JUSTICE: THAT IS YOUR ARGUMENT. WELL, NOT YET.

CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL.

I AM SORRY.

CHIEF JUSTICE: IT IS U P TO YOU. YOU CAN USE IT LIKE YOU WANT .

NO , UNL ESS YOU HAVE AQUESTION.

CHIEF JUSTICE: THANK YOU.

GO OD MORNING. IT IS AN H ONOR TO BE HERE. JUSTICE WELLS , D E ALING FIRSTWITH ONE OF THE QUESTIONS OR JUSTICE LE WIS , I GUESS IT WAS , THAT YOU RAISED, GRACIE DOES NOT APPLY IN THIS CASE BECAUSE GRACIE CREATES A STATUTORY DUTY OF CONFIDENTIALITY FOR PSYCHOTHERAPIST S, AND THAT VERY STATUTE EXPRESSLY EXCLUDES CLERGY PE RSONS , R ABIES , PRIESTS , AND -- RABBI S AND PRIESTS AND OTHER PERSONS OF MINISTER . THE STATE CANNOT LICENSE CLERICS. THAT IS THE WHOLE BA SIS O F THE FIRST AMEN DMENT. THE FIRST AME NDMENT PROTECTS FREEDOM OF REL IGION AND PROTECTS FR EEDOM OF EXPRESSION. THE STATE CAN'T COM E IN AND TELL A CLERGY PERSON WE ARE G OING TO REGULATE YOU AND TELL YOU WHAT YOU CAN AND CAN'T DO. WE ARE GOING TO LIC ENSE YOU.

CHIEF JUSTICE: I DON'T HEARING A CONSTITUTIONAL ARGUM ENT IN THIS CASE RA ISED THAT THERE IS A CAUSE TO THE ACTION BASED ON THE FIRSTAMENDMENT, AND IN DOE VERSUS E VANS AND I N MALECKY , HAVE YOU RAISED THE FIRST AMENDMENT?

I HAVE RAISED IN THE M OTION TO DIS MISS AND I HAVE RAISED IT IN FRONT OF THIS COURT WHERE THE REVIEW WAS DEPHILOSOPHY-, SO IT WAS RAISED IN -- WHERE THE REVIEW WAS DE NOVO , SO IT WAS RAISED IN THE FIRST AMENDED COMPLAINT.

CHIEF JUSTICE: THE HOOP THAT WE HAVE TO GET THROUGHWOULD BE IS THERE A CAUSE OF ACTION RECOGNIZED .

RIGHT.

CHIEF JUSTICE: THEN IF THERE IS, IS THERE A BA R UNDER THE FIRST AMEN DMENT T O ALLOW THAT CAUSE OF ACTION TO GO THROUGH?

JUSTICE PARIENTE , Y ES, YOU ARE EXACTLY RIGHT.

CHIEF JUSTICE: I WANT TO M AKE SURE , BECAUSE WE HAVE GOT THRO UGH THESE TWO HOOPS AND THEN GET TO WHETHER EVEN IF YOU HAD A CAUSE OF ACTION AND EVEN I F THE FIRST AMENDMENT DOESN'T BAR IT AND EVEN IF THE NATURE OF THECAUSE OF ACTION IS T LFER B REACH A -- IS NEVER BREACH A FIDUCIARY RELATIONSHIP IN A COUNSELING SITUATION WHERE THERE WON'T BE IMPACT, YOU HAVE TO GET TO THE IMPACT W OULD STILL APPLY. THERE WOULD HAVE TO BE EITHER A TOUCHING OR PHYSICAL IN JURY AR ISING FROM IT.

YOU ARE EXACTLY RI GHT. IT IS A VERY CIRCULAR ARGUMENT THAT THE OTHER SIDE HAS TO MAKE TO GET THERE. FIRST OF ALL , THERE HAS TO BE SOME DUTY OF CONFIDEN TIAL THERE HAS TO BE SOME RECOGNIZE -- CONFIDENTIALI TY. THERE HAS TO BE SOME RECOGNIZED TO RT. IF HE WAS NO CLERGY PERSON,THERE IS NO CONFIDENTIAL ITY ANYWHERE.

CHIEF JUSTICE: IT IS ALLEGED FOR PURPOSES OF THE POINT TO DISMISS IS THE COMPLAINT ARISE S FROM A CONFIDENTIAL RELATIONSHIP BETWEEN THE STUDENT AND A MEMBER OF THE CLERGY.

THEY HAVE NOT ARRIVED AT THE EV IDENCE CO DE THAT MAKES SOMEBODY A CLERGY PERSON.

JUSTICE: ACCO RDING TO THE ARGUMENT TODAY THEY ARE NOT RELYING ON THE EVIDENCE CODE. THEY ARE RELYING ON A COMMON L AW DUTY.

IT IS DIFFICULT FOR ME TO UNDERSTAND SOMETIMES WHAT THEY ARE RELYING ON BUT EITHER WAY YOU GO THERE , IS NO COMM ON LAW DUTY OF CONFIDENTIALITY ANYWHERE BETWEEN A HIGH SCHOOL TEACHER ESPECIALLY AT PRIVATE CHRI STIAN SCHOOL,AND A STUD ENT. THAT IS WHY GRACIE BECOMESIMPORTANT BECAUSE THE DUTY OF CONFIDENTIALITY I N GRACIE AROSE OUT OF STATUTE WHICH SAYS THE STATE SA ID IF WE L ICENSE YOU AS A PSYCHOTHERAPIST, YO U HAVE TO KEEP EVERYTHING YOU HEAR CONFIDENTIAL, AND THE STATE SAYS CLERGY PERSONS AREEXEMPT FROM THAT STATUTE.

CHIEF JUSTICE: BECAUSE THAT IS THE CIRCULAR , THAT IS THE FIRST AMENDMENT ISSUE A BOUT NOT BEING ABLE TO LICENSE CLERGY, BUT YOU ARE ACT UALLY GOING WITH WHAT JUDGE STONE SAYS, WHERE HE QUESTIONS WHETHER THIS TEACHER WAS ACTUALLY A CLERGY MEMBER , CORRECT?

THAT IS CORRECT. THAT IS THE FIRST LEG OF THE ARGUMENT, AND I THINK THAT SHOULD END THE CASE.

CHIEF JUSTICE: I GUESS THAT, I F , BUT , IF WE , WEWOULD HAVE TO T AKE THIS CASE , TO REALLY SAY, NO , THERE WASN'T EVEN A CLERGY RELATIONSHIP, AND HOW WOULD WE DETERMINE THAT , WITHOUT THEIR BEING SOME K IND OF A HEARING ON EXACTLY THE NATURE OF THIS PERSON WAS .

YOUR HONOR, IF YOU LOOK AT THE PLEADINGS IN THIS CASE WHICH IS WHAT WE HAVE TO GO WITH AT THE MOTION TO DISMISS LEVEL. THE PLEAD INGS SAY THAT THERE WAS NO FOR MAL RELIGIOUSORGANIZATION INVOLVED . THAT JU PITER CHRISTIAN WAS A CHRISTIAN SCHOOL BUT NOT INVOLVED WITH ANY PARTICULAR DENOMINATION. IT SAYS THAT MR. BELLHORNEWAS CHAPLAIN OF THIS SCHOOL THAT WAS NOT INVOLVED WITH ANY PARTICULAR RELIGIOUS DENOMINATION, THEN YOU GO TOTHE EVID ENCE COD E AND THE EVIDENCE CODE REQUIRES THAT SOMETHING NOR MALLY RECOGNIZED AS RELIGION BE INV OLVED IN ORDER FOR THE CLERGY PRIVILEGE TO APPLY .

JUSTICE: ISN'T THERE A SECTION OF THAT THAT ACTUAL INDICATES THAT IF YOU BELIEVE THAT SOMEONE IS A CLERGY PERSON AND YOU TREAT THEM IN THAT FA SHION, THAT THEY CAN FIT THE DEFINITION OF BEING A MEMBER OF THE CLERGY?

JUSTICE QUINCE THAT, REASONABLE BELIEF IS BASED U PON SOMEONE'S REASONABLE BELIEF THAT SOMEONE MEETSTHE REQUIREMENTS. I FOUND A N OUT-OF-STATE CASE WHICH SAYS THAT THAT IS THE PURPOSE OF THE REASONABLE BELIEF REQUIREMENT. IN OTHER WORDS, IF YOU REASONABLY BELI EVE THAT SOMEBODY IS A CATH OLIC PRIEST , THAT QUALIFIES .

JUSTICE: BUT WE HAVE A CHILD HERE WHO IS AT A RELIGIOUS SCHOOL, AND DON'TYOU THINK UNDER THOSE CIRCUMSTANCES RESPEC T AND THIS PERSON HELD HIMSELF OUTTO BE THE CHAPLAIN AT THIS SCHOOL. WOULDN'T THAT FIT INTO BEING A REASONABLE BELIEF THAT THIS PERSON WAS A MEMBER OF THE CLERGY?

JUSTICE QUINCE, LOOKINGAT THE EVIDENCE CODE, THE REASONABLE BELIEF HAS TO BE THAT THE PERSON IS A PRIEST OR SOMETHING OF A DENOMINATIONS USUALLY REFERRED TO AS A CHURCH. THE ALL EGATION , THE SPECIFIC ALLEGATION INS THIS CASE ARE THAT THERE WAS NO CHURCH INVOLVED, AND THE EXA MPLE IS, IF PU BLIC AND - - IF PUB LIX APPOINT ADD CHAPLAIN , WOULD SOMEONE GO TO THE CHAPLAIN AT PUBL IX AND SAY I CONFESS A CRIME AND THEN CL AIM THAT THEY HAD REASONABLE BELIEF --

CHIEF JUSTICE: THE CR IME IS NOT AN EX CEPTION HERE. THE ALLE GATION --

ANY CONFESSION.

CHIEF JUSTICE: I GUE SSYOU CAN'T CONTEST IT AT THIS POINT IS FIRST OF ALL THE CHAPLAIN WAS TO MINISTER TO HIGH SCHOOL TEENAGERS. IT WAS ALSO ALLEGED THAT IT WAS NOT, THAT THE ADMINISTRATORS OF THE CHRISTIAN SKROOL DI RECTED - - SCHOOL DIRECTED BELLHORNE TO MEET WITH HIM , TO QUESTION AND COUNSEL WITH HIM ABOUT THE SE XUAL ORIENTATION , SO IT WAS ACTUALLY THE SCHOOL THAT DIRE CTED THIS STUDENT , UNDER THESE ALLEGATIONS , TO SEEK COUNSEL. HE, THEN, SOUGHT COUNSEL AND THE ALLEGATION IS THAT HE SOUGHT SPIRITUAL ADVICE UNDER A PROMISE OF CONFIDENTIALITY, AND THEN THE ALLEGATION F URTHER IS THAT THE CHAPLAIN , RATHER THAN KEEP IT CONFIDENTIAL AND JUST MIN ISTER HIM , DISCLOSED TO THE LE ADERS WHO, THEN , THREW HIM OUT OF SCHOOL. I MEAN, THAT IS WHAT WE HAVE GOT TO BE TAKING AS THIS --

YOU CAN TAKE THAT AS TRUE BUT ALSO THERE ARE FACTSPLED IN THIS COMPLAINT. THE SCHOOL NEVER SAID IT EXPELLED THIS YOUNG MAN FOR BEING GAY AND THEY HAVE ACTUALLY , ONE OF THE COUNTS THEY WANT THE SCHOOL TO SAYTHEY EX PELLED HIM BECAUSE HE WAS GAY .

CHIEF JUSTICE: THAT, AGAIN, A FACTUAL DISPUTE. THAT IS WHAT IS ON THE BOOKS HERE AS TO A, THE CA USE OF ACTION, AND I GUESS WHAT I WANT, IF WE ASSUME THE CA USE OF ACTION EX ISTS , ISN'T THIS O NE OF THE KINDS OF TO RTS THAT IS A CAUSE OF ACTION FOR BREACH OF A FIDUCIARY RELATIONSHIP, WHERE THE DAMAGES ARE AL WAYS GOING TO BE PREDOMINANTLY EMOTIONAL. LIKE THERE ISN'T GOING TO BE A PHYSICAL IMP ACT IN A BREACH OF A FIDUCIARY RELATIONSHIP. SO E ITHER THE "IMPACT RULE" DOESN'T APPLY OR SHOULDN'T , CONSISTENT WITH THE LINE OF CASES WHICH TALK ABOUT TORTS WHICH ARE PREDOMINANTLY EMOTIONAL, SUCH AS INVASION OF PRIV ACY, A LEGAL MALPRACTICE CASE. THIS FALLS INTO , IF IT IS A RECOGNIZED TORT , EITHER IT IS AN EXCEPTION TO THE"IMPACT RULE " OR THE "IMPACT R ULE" NEVER INTENDING TO APPLY TO SOMETHING LIKE THIS?

YOUR HONOR , THAT QU ESTION MEETS THE FIRST AMENDMENT HEAD ON , AND THAT IS WHY FIRST AMENDMENT ISS UES K EEP GETTING INVOLVED IN THIS. FIRST OF ALL , THERE IS NO RECOGNIZED TORT IN THIS S ITUATION, AS JU DG E CROW RULED BELOW , BUT SECONDLY IF THERE WAS A RECOGNIZED TORT OF SOME SORT, BASED ON A CONVERSATION WITH A CLERGY P ERSON , WHETHER THAT CLERGY PERSON HAS A RELIGIOUS DUTY TO DIS CLOSE TO HIS SUPERIORSOR NOT , IS A QUESTION OF RELIGIOUS LAW THAT THIS COURT CAN CANNOT GET INTO.

JUSTICE: LET ME ASK YOU A QUESTION GOING BACK TO INJURIES. IF THIS INDIVI DUAL HAD PLUNGED A K NIFE INTO THIS YOUNG MAN 'S CHEST ANDTORYHIS HEART OUT , WOULD THAT HAVE BEEN A -- AND TORE HIS HEART OUT, WOULD THAT HAVE BEEN AN ACTION ABLE TORT?

YES.

JUSTICE: AND SP READING WORDS AND INFORMATION ABOUT HIM AND THEY TEAR THE SAME HEART OUT , THAT IS DIFFERENT.

YOU ARE NOT DE ALING WITH A CRIME IN A TE NET V IEW . THE LI GHTMAN CASE OUT OF NEW YORK HAS GR EAT EXPLANATION FOR WHY YOU CAN'T GET INTO A RABBI OR CLERGY OR MINI STER, S HOULD TE LL OR NOT TELL , REMEMBER WE ARE NOT DEALING WITH NEGLIGENCE. THIS IS A INTE NTIONAL ACT. THEY HAVE ALLEGED THIS AS A NEGLIGENCE ACTION WHERE MR . BELLHORNE NEGLIGENTLY INFLICTED EM OTIONAL DAMAGES.

JUSTICE: LET'S SAY THAT HE NEGLIG ENTLY PU T A KNIFEIN THE YOUNG MAN'S HEART.

THERE ARE NO ISSUES INVOLVED IN THAT. IT IS PRETTY CLEAR THAT PHYSICAL HA RMING SOMEBODY IS NOT THE BASIS FOR ANY RELIGIOUS VIEWS IN ANY RELIGION THAT I KNOW OF , AT L EAST NOT THAT WE RECO GNIZE IN THE UN ITED STAT ES, BUT TELLING OR NOT TELLING GOES TO THE VERY HEART O F THE RELIGIOUS VIEWS.A RA BBI MAY VERY WE LL HAVE TO TELL THE HUSBAND , I F IN THE CASE OF LIGHTMAN , THAT HIS WIFE WAS CEREMONIAL UNCLEAN , AND A CATHOLIC PRIEST MIGHT NOT HAVE THAT OBLIGATION. THIS COURT AND NO SECULAR COURT IN AMERICA CAN COME IN AND LOOK AT THAT AND MAKE THAT KIND OF DETERMINATION.

CHIEF JUSTICE: IF THE ALLEGATION IS, IF HE PROMISED HIM THAT HE WASN'T GOING TO TELL , AND THEN HE TOLD , HOW IS THAT NEGLIGENT? I MEAN , THAT IS , I HAVE GO T TO LOOK BACK AT THE COMPLAINT.

IT STILL GOES BACK TO THEDUTY. IS THERE A DUTY OF CONFIDENTIALITY? I CAN PROM ISE YOU NOT TO TELL SOMETHING, AND WHETHER OR NOT YOU WOULD BE ABLE TO SUE M E WOULD BE BASED UPON WHETHER OR NOT I HAD SOME DUTY OF CONFIDENTIALITY, NO MATTER WHAT I SAID TO YOU. IF I WE NT AND TOLD MY NEIGHBOR A SECRET AND SAID PROMISE THAT YOU WON'T TELL AND THAT NE IGHBOR WEN T AND TOLD, I WOULD HAVE NO CAUSE OF ACTION. CHIEF NOW WE GO BACK TO THE VERY BASIS THAT YOU ARE RAISING THE FIRST AMENDMENT , SHOWS THAT YOU ARE AT LE AST ASSERT AGO THAT THERE IS A RELIGIOUS TRUST INVOLVED , AND THAT IS WHY , I MEAN TRADITIONALLY WHETHER IT A RABBI OR PRIEST , THAT THERE ARE DISCUSSION S THAT ARE BETWEEN A CONGREGANT AND THEIR CLERGY THAT IS TRADITIONALLY UNDERSTOOD TO BE CONFIDENTIAL , AND SO IT IS NOT THE S A ME AS GOING TO YOUR NEIGHBOR OR TALKING TO YOUR NEIGHBOR.

I DISAGREE WITH THAT , YOUR HONOR, BEC AUSE SOME RELIGIONS MAY TA KE A DIFFERENT VI EW OF THAT. FOR IN STANCE THE JEWISH RELIGION TAKES THE VIEW APPARENTLY AT LEAST IN SOME SYNAGOGUE INS NEW YORK THAT THERE IS A RMING US DUTY TO DISCLOSE CONFIDENTIAL CONVERSATIONS AND THE COURTIS CLEAR IN T HAT IT CAN'T BE DONE AND M Y CASE IS THE ARGUMENT FROM THE OTHER SIDE IS EI THER MR . BELLHORNE WASA CLERGY PERSON OR HE WASN'T AND AS JUDGE CROW RULED, IF HE WASN'T A CLERGY PERSON THAT OUGHT TO BE THE END OF THE ST ORY AND IF HE WASN'T A CLERGY PERSON THERE , IS NO STATUTORY LAW O F COMMON DUTY THAT WOULD APPLY AND IF IT DIDN'T BAR THE CL AIM , THE"IMPACT RULE" WOULD BAR THE CLAIM, AND IF THE "IMPACT RUL E" DIDN'T BAR THE CLAIM , THERE ARE AT LEAST THREE OR FOUR LEVELS THAT YOU GET INTO IN WHY THIS COURT SHOULDN'T EXC EPTION JURISDICTION IN THIS CASE. YOU GET INTO THAT.

CHIEF JUSTICE: MY PRO BLEM IS A MAJ ORITY OPINION , IF YOU CORRECT , BETTER TO TAKE THE CASE AND MA KE THAT CLEAR , BECAUSE RIGHT NOW THE MAJORITY O P INION ASSUMES ACAUSE OF ACTION . IT DOES NOT ASSUME ANYTHING ABOUT THE FIRST AMENDMENT AND ASSU MES, THOUGH HAD,THAT THE "IMPACT RULE" MAYBE APPLIES RES PECT DEPENDING ON WHETHER WE CREATE ONE M ORE EXCEPTION , AND DO ESN'T AGREE WITH JUDGE FA RMER , WHO SAYS IT IS NOT AN EVEN A "IMPACT RULE" CASE, BECAUSE THIS IS AN EMOTIONAL DA MAGE TORT NOT A PHYSICAL IN JURY TORT, SO THAT IS THE PROBLEM I HAVE WITH NOT, I F YOU ARE RIGHT , THAT WE LEAVE THAT OUT THERE .

I F EEL PRETTY CERTAIN I AM RIGHT, YOUR HONOR, OR I WOULDN'T BE HERE. THE PROBLEM THIS COURT - -

CHIEF JUSTICE: I GUESSYOU HAVE NO CHOICHLTS MAYB E I GUESS SOMEONE ELSE COULDHAVE BEEN HERE.

I COULD HAVE SENT SOMEONE E LSE. THE PROBLEMS THAT YOU ARE DEALING WITH , WITH WHAT THE FOU RTH DISTRICT DID , IS THIS COURT HAS DE NOVO JURISDICTION. THIS IS A DE NOVO APPEAL. YOU CAN THROW THE CERTIFIED QUESTION OUT. YOU CAN REWRITE THE CERTIFIED QUESTION.YOU CAN ANSWER IT IN THE NEGATIVE. YOU CAN ANSW ER IT IN THE AFFIRMATIVE.AS I READ THE CASE LAW , YOU CAN D O JUST ABOUT ANYTHING YOU WANT TO, ONCE YOU ACCEPT JURISDICTION. THAT MEAN S YOU COULD HOLD THAT, IF M R. BELLHORNE IS A CLERGY PERSON, THERE IS NO CAUSE OF ACTION BECAUSE OF THE FIRST AM ENDMENT ANDBECAUSE THE EVID ENCE CODE CAN'T OVERRULE RELIGIOUSLAW. IF MR . BELLHORNE WAS NOT A CLERGY PERSON AS JUDGE STONE OPINED IN HIS CONCURRING OPINION , THERE IS S I MPLY NO DUTY, AND I WOULD LI KE TO ADD BEFORE MY T IME RUNS OUT AND BEFORE I FOR GET, THE EVIDENCE CODE LI MITS THE PRIVILEGES IN THIS STAT E TO THE PRIVILEGES CREATED , NUMBER ONE, BY STATUTE , N UMBER TWO TO THE CONSTITUTION, AND NUMBER THREE IN THE EVID ENCE CODE, ITSELF. THERE IS NO STATUT E, THEREIS NOTHING IN THE CONSTITUTION, THERE IS N OTHING ANYWHERE THAT CREATES A COMMON LAW DUTY OF CONFIDENTIALITY IN THIS STATE. THERE I S NOTH ING, THERE IS A PRIVILEGE WHICH DEALS WITH CLERGY PERSON, BUT THAT IS , I THINK --

JUSTICE: LET ME ADDRESSTHAT JUST TO DOVETAIL ON WHAT JUSTICE PARIENTE WAS SAYING BECAUSE I HAVE THE SAME CONCERN. IF YOU ACCEPT THE AR GUMENT THAT 505 GIVES RISE TO THE DUTY, THEN 5 03 THE PRIVILEGEIS THE JOURNALIST PRIVILEGE, SO IF ONE WERE TO DISC LOSE , IN CONFIDENCE , TO A JOURNALIST AND THAT JOURNALIST TURNED AROUND AND PRINTED IN THE NEWSPAPER, IF WE ACCE PT THIS ARGUMENT , M Y CONCERN IS THE NE XT STEP IS SOMEBODY WOULD BRING A CAUSEOF ACTION AGAINST THE JOURNALIST, ALLEGE ING A B REACH OF THE DUTY OF CONFIDENTIALITY IN 50 3.

FIRST OF ALL PRIVILEGE --

JUSTICE: IF YOU HAD PRIVILEGE IN 505 WOULD AND DUTY, THEN IT IS VERY SIMILAR THAT THE PRIVILEGEIN 503 ALSO GIVES RIS E TO ADUTY. I THINK IT WOULD AND JUST SO --

I THINK IT WOULD AND JUST SO MY POSITION IS CLEAR , THEEVIDENCE CODE DOE S NOT CREATE DUTIES O F CONFIDENTIALITY. THE EVIDENCE CODES DEAL WITH TESTIMONIAL PRIVILEGE . THERE ARE TWO CASES C ITED THAT DEAL WITH THAT , ONE OF THEM IN VOLVED A HUSBANDTELLING A LAW ENFORCEMENT AGENCY THAT HIS WIFE WAS THE PERSON THAT HAD BEEN INVOLVED IN SOME SORT OF TRAFFIC INFRACTION, AND THE COURT IN THAT CASE SAID,WELL, MAYBE IT WAS PRIVILEGED COMMUNICATION BUTTHAT DOESN'T MEAN THAT LAW ENFORCEMENT CAN'T USE THAT INFORMATION TO BRING CHA RGES AGAINST THE WO MAN, AND THE OTHER ONE INVOLVED A LAWYER WHICH DISCLOSED OTHERWISE CONFIDENTIAL COMMUNICATIONS , AND IN THIS CASE IF MR . BELLHORNE CAME INTO COURT AND THIS PRIVILEGE HADN'T BEEN WAIVED , WHICH IT PROBABLY HAS BEEN BY THEFILING OF THIS LAWSUIT , THEY COULD PRE VENT MR . BELL HORN -- MR . BELLHORNE , PERHAPS IF HE WAS A CLERGY PERSON F ROM TESTIFYING. THAT DOESN'T MEAN THAT MR . BELLHORNE DOESN'T HAVE A DUTY OR OBLIGATION OR LIABILITY FOR BREACH THAT CREATES A CAUSE OF ACTION . THE EVIDENCE CODE DOES NOT CREATE A PRIVATE CAUSE OF ACTION. IT CREATES TESTIMONIAL PRIVILEGES. ARE THERE ANY OTHER QUESTIONS I CAN ADDRESS?

CHIEF JUSTICE: IT SEEMSYOU HAVE COVERED THE G AMUT.

THANK YOU.

CHIEF JUSTICE: REBUTTAL.

YES , YOUR HONOR. I WOULD LIKE TO COMMENT ON SOMETHING THAT JUSTICE LEWIS RAISED , AND IT KIND OF GOES TO JUDGE FA RMER 'S DISSENT, WHERE TALKING ABOUT HUMILIATION AND DIST RESSTHAT THE CH ILD SUFFERED AS A RESULT OF THE EXPLOSION OF HIS PRIVACY . IT WAS EQUATED THIS WOULD IMPRISON HIM FOR LIFE. WE ARE NOT DEALING WITH SOMETHING SLIGHT. TO THIS CHILD IT WAS A MA JOR ISSUE AND A MAJOR CONFLICT FOR HIMSELF. HE WAS A DE VOUT CHRISTIAN IN A RELIGIOUS SCHOOL SINCE N INTH G RADE AND WAS GOING TO BE A SE NIOR WHEN THIS ALLOCCURRED. THIS IS A MAJOR ISSUE FORTHIS CHIL D AND THEN TO HAVE IT REVEAL ED AND NOT AT HIS WILLING , IS NOTHING BUT EMOTIONAL DISTRESS. I THINK THAT IS VERY IMPORTANT.

CHIEF JUSTICE: BUT DOES YOUR CAUSE OF ACTION HI NGE ON THAT HE , THE PERSON WHO WAS DISCLOSED TO , IS A MEMBER OF THE CLERGY ?

IT WOULD IN C. -- DOES IT HINGE ON THAT? AT THIS STAGE OBVIOUSLY THE ALLEGATIONS NEED TO BE TAKENAS TRUE , AND THEY SAY THAT THE CHILD REASONABLY HAS ABELIEF THAT THIS GENTLEMANIS A CHAPLA IN FOR HIMS ELF , AND THE WAY THE CHAPLAIN APPROACHED HIM , IT WAS I AM COMING TO YOU AND I WOULD LIKE TO COUNSEL YOU SPIRITUALLY ABOUT YOUR SEXUAL ORIENTATION . THERE IS A BELI EF AND IT IS REASONABLE THAT THIS MAN --

CHIEF JUSTICE: WHAT ABOUTTHE FIRST AMENDMENT THEN?

THE FIRST AMENDMENT, WELL , UNDERSTAND, TOO , IT WASRAISED IN A M OTION TO DISMISS BELOW AND NEVER PASSED ON , NEVER ARGUED IN THE FOURTH.

CHIEF JUSTICE: IT WAS NOT A POINT RAISED IN APPEAL, O N APPEAL ?

THE FOU RTH OBVIOUSLY DID NOT PA SS ON IT.

CHIEF JUSTICE: IT IS DIFFERENT.WAS IT RAISED IN THE BRIEF OF JUPI TER CHRISTIAN IN THE FOURTH DISTRICT? NO?

NO , IT WAS NOT AND IT HAS BEEN RAISED HERE AGAIN WIT HOUT ANY LO WER COURT PASSING ON THE ISS UE. WHETHER THERE IS ENTANGLEMENT --

JUSTICE: WAS IT PART OF THE MO TION TO DISMISS?

IT WAS PART OF , YES , THEMOTION TO DISM ISS, BUT JUDGECROW, THE TRIAL COURT'S RULING DOES NOT PASS ON IT.

JUSTICE: I K EEP GETTING CONFUSED BY YOUR ARGUMENT BECAUSE AT TIMES YOU SEEM TO BE REL YING ON 95.05 ANDOTHER TIMES YOU -- 90.505 AND OTHER TIMES YOU SAY IT DOESN'T MATT ER. HE HAPPENED TO BE A MEMBER OF THE CLERGY HERE BUT HE DOESN'T NECESSARILY HAVE TO BE TO C REATE THIS CAUSE OF ACTION. AS I UNDERSTAND YOUR ARGUMENT, YOU ARE SAYING IF THERE IS ANY KIND O F RELATIONSHIP CREATE THERE HAD, WHERE SOMEBODY IS REPOSING A CONFIDENCE IN SOMEBODY ELSE , AND THAT PERSON VIO LATES THAT CONFIDENCE, THERE IS A DUTY AND A BREACH OF A DUTY.

THAT'S RIGHT.I AM RELYING ON THAT , AND TO CLEAR IT UP I AM NOT RELYING ON 90.505. I KEEP SAYING 90. 505 A S A POLICY ARGUMENT THAT WE VALUE THAT RELATIONSHIP . A PENETENT'S RELATIONSHIP WITH A CHAPLAIN, AND WE DO RELY MO RE, THOUGH, ON THE GRACIE CASE THAT THIS IS A B ROAD DUTY. AND --

JUSTICE: IT SEEMS TO ME IF YOU TAKE THAT TO ITS LOGICAL CONCLUSION, THAT IF I HAVE A RELATIONSHIP WITH SOMEONE AND VERY CLOSE RELATIONSHIP, MY CONFID ANTE, WHATEVER , THEN UNDER YOUR ANALYSIS , THERE IS THEN A FIDUCIARY RELATIONSHIP BETWEEN THE TWO OF US , AND THAT PERSON CANNOT DIVU LGE MY CONFIDENCE WITHOUT BEING SUBJECT TO M E SUING THEM .

IT SURE SEEMS TO ME IN LOOKING AT THE LAW THAT IT COULD BE THAT BROAD, BUT THIS COURT DOES NOT HAVE TO GO THAT FAR. LOOKING AT THE RELATIONSHIP IN WHICH THIS RELATIONSHIP WAS DEVELOPED , THERE IS ALONG STANDING --

JUSTICE: HOW DOES THIS , IF WE TAKE O UT THE CLERGY PORTION OF IT , HOW DOES THIS RELATIONSHIP DIFFER FROM THE RELATIONSHIP I JUST P O STED TO YOU?

-- I JUST POSITED TO YOU?

THE RELATIONSHIP --

JUSTICE: A GO OD FR IEND WHO I HAVE RE POSED TR UST ANDCONFIDENCE IN OVER THEYEARS.

I THINK THAT HAS TO BE ALSO WITHIN THE LAW, SOME SUPERIORITY IN POSITION IN A SENSE, FROM VULNERABILITY ON BEHALF OF A CHILD , AND THERE WAS SOME VULNERABILITY HERE. THIS CHILD WAS STRUGGLING WITH HIS SE XUAL ORIENTATION AND WE HAVE THAT AS PECT AS WELL , AND THE TRUST DEVELOPS THERE , AND ACCEPTED BY THE C HILD . M AYBE IN TALKING WITH A FRIEND, YOU M IGHT EXPECT YOUR SECRETS WITH YOUR FRIEND TO BE PRIVATE. I AM NOT SURE THAT IS A FIDUCIARY RELATIONSHIP. I SEE M Y --

CHIEF JUSTICE: YOUR TIME IS UP. YES. THANK YOU VERY MUCH.

THANK YOU.

CHIEF JUSTICE: THE COURT WILL TAKE THIS MATTER UNDER ADVISEMENT. THE COURT WILL BE IN RE CESS. WE HAVE FINI SHED A LITTLE BIT BE FORE TEN O'CLOCK , SO MISS PITTS , IS IT , IF WE START A LI TTLE BEFORE 10:30 WILL THAT BE OKAY? WE WILL BE IN RECESS FOR 25 MINUTES .

MARSHAL: PLEASE RISE.