Episcopal Diocese of S. Va. v. Marshall

903 S.E.2d 534

81 Va.App. 255

The EPISCOPAL DIOCESE OF SOUTHERN VIRGINIA, et al.

v.Robert K. MARSHALL, et al.

Record No. 1955-23-2

Court of Appeals of Virginia.

July 16, 2024

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY, Edward A. Robbins, Jr., Judge

Anne G. Bibeau, Norfolk (W. Thomas Chappell, Norfolk; Pietro Sanitate, Richmond; Woods Rogers Vandeventer Black PLC, on briefs), for appellants.

Joshua Farmer (Farmer Legal, PLLC, on brief), for appellees.

Amicus Curiae: Commonwealth of Virginia; M. Jordan Minot, Assistant Solicitor General (Jason S. Miyares, Attorney General; Erika L. Maley, Solicitor General; Kevin M. Gallagher, Principal Deputy Solicitor General, on brief), for appellants.

Present: Chief Judge Decker, Judges Raphael and White

OPINION BY JUDGE STUART A. RAPHAEL

₂₅₈The Court granted review in this interlocutory appeal to decide if the ecclesiastical-abstention doctrine applies to a claim for defamation per se filed by a former Episcopal priest against the diocesan bishop who deposed him from the ministry. We find that the defamation claim is inextricably intertwined with the disciplinary proceedings that led to the priest’s ouster. In addition, the trier of fact would have to decide if the priest committed "sexual misconduct" within the meaning of canon law, which proscribes a broader swath of conduct than secular law. Accordingly, we hold that the defamation claim is barred by the protections for religious liberty in the First Amendment of the United States Constitution and in Article I, Section 16 of the Virginia Constitution.

₂₅₉BACKGROUND¹

The two plaintiffs in this case are Robert K. Marshall and his wife, Tatiana C. Marshall. The three defendants are the Episcopal Church, the Episcopal Diocese of Southern Virginia, and the Right Reverend Susan B. Haynes. Bishop Haynes was sued "both individually and in her official capacity" as the diocesan bishop. The only claim at issue here is Count XI. That count alleges that Bishop Haynes committed defamation per se in May 2022 when she told the congregation of the Episcopal Church of Redeemer-Midlothian ("Redeemer") that Marshall had engaged in sexual misconduct and that he had admitted as much. The trial court overruled Bishop Haynes’s plea in bar, holding that the ecclesiastical-abstention doctrine was not implicated. We summarize the facts relevant to that claim.

Marshall became a priest in the Episcopal Church in 2006. A decade later, he moved his family to Chesterfield County, where he became the rector at Redeemer.²

In 2021, Marshall interviewed a prospective church employee, Jane Doe, whom he hired. At the end of Doe’s job interview, Marshall placed his hand on the small of her back as he ushered her out. That incident was witnessed by "Roe," another church employee. Although Roe found Marshall’s conduct inappropriate, Doe did not think so at the time. Doe later told Marshall that she was interested in becoming a priest, and he was happy to counsel her.

Over the next several months, Marshall often made Doe feel uncomfortable because she viewed his remarks as inappropriate sexual advances:

₂₆₀• At a church event on Christmas Eve, Marshall told Doe that she looked "pretty" and said that she would be "a great catch."

• Marshall asked Doe why she was still single, predicting that she would "make a man very happy" someday.

• Marshall told Doe after a church service that he enjoyed seeing her sitting with his daughter in the congregation.

• Marshall shared with Doe that a parishioner once said that she was in love with him.

• And Marshall repeatedly told Doe that he missed their regular Monday meetings when they had to be canceled or rescheduled.

Events came to a head in the spring of 2022. When Marshall invited Doe to lunch on Valentine’s Day, Doe felt that "the invitation was inappropriate because of the symbolism associated with that day." A week later, when Doe asked Marshall to lunch, Marshall told Doe that the invitation made him "feel like a giddy eighth grader." Doe interpreted that remark too as an inappropriate sexual reference. Afterward, Doe shared her concerns with Roe.

On March 7, 2022, Doe initiated a "Title IV complaint" against Marshall, listing the grievances described above. "Title IV" refers to the canons that govern ecclesiastical discipline in the Episcopal Church.³ The associate rector who received Doe’s complaint promptly referred it to Bishop Haynes. The next day, Bishop Haynes placed Marshall on administrative leave, telling him that the complaint described "inappropriate comments … regarding [Doe’s] appearance and marital status and [Marshall’s] feelings about being with her," which "[Doe] perceived … as harassment." Although the intake report is not in the record, Marshall pleads (and we take as ₂₆₁true) that the report "did not allege" that Marshall had "engaged in any form of inappropriate sexual touching."

An investigator for the Diocese looked into the allegations and met with Marshall. Marshall did not remember telling Doe that she was "pretty," but he said if he did, he meant it as a "compliment, not a sexual advance." Marshall denied telling Doe that she would be a "great catch" or "make a man very happy." He did not recall asking why Doe was still single. He admitted saying he missed it when they could not have their regular meetings. Marshall remembered his giddy like an eighth grader remark, but he denied it was sexual in nature. He said he was just excited that Doe had asked for his help in becoming a minister. Marshall denied that his lunch invitation on Valentine’s Day was a romantic gesture. Finally, Marshall did not remember touching Doe’s back during her job interview, but he acknowledged that he could have done so when escorting her from one place to another.

On April 8, the investigator delivered a report to Bishop Haynes. The report (which is also not in the record) said that Marshall had "agreed that most of the eleven interactions took place," although Marshall alleges that the rest of the report contradicted that assessment. Compl. ¶ 52. The investigator wrote that Marshall had "expressed astonishment" that his behaviors "would be seen as sexual misconduct," but Marshall was willing "to apologize to Doe." Compl. ¶¶ 55-56. The investigator posited two possibilities: that Marshall was trying "to avoid the consequences of his actions"; or that Marshall "truly did not understand" that his behavior could be construed as "sexual misconduct." Compl. ¶ 57.

Bishop Haynes met with Marshall and encouraged him to undergo a "one-week ‘fitness to practice’ " evaluation in Kansas. The evaluation would include, among other things, "a polygraph test to determine whether he was being truthful, and whether it would be appropriate for him to continue as a priest." Marshall understood that the outcome "would determine" whether the Diocese "could move forward with a process of restoration and reconciliation—or whether [Marshall’s] ₂₆₂situation was more dire." Marshall agreed and departed for Kansas on Sunday, May 1, 2022.

That same day, Bishop Haynes met with the congregation at Redeemer "to discuss the investigation with all of the parishioners who were present for that Sunday’s worship." Marshall’s complaint compiles a long list of the bishop’s allegedly false statements to the congregation, labeling them "The Bishop’s Lies." Compl. at 12. Bishop Haynes told the congregation that Marshall was the subject of a complaint that "involved sexual harassment and, specifically, boundary violations of a sexual nature." Compl. ¶ 64. Marshall pleads that Bishop Haynes intended parishioners to think the worst, "allowing time for the crowd to work itself up to a frenzy of audible murmurs." Compl. ¶¶ 65-66.

Marshall claims that the bishop falsely stated that the investigator had "determined that the allegations had merit." Compl. ¶ 67. He says that the bishop falsely stated that Marshall had admitted to the improper conduct. Compl. ¶¶ 75-76. He pleads that Bishop Haynes also lied when she claimed that the church had followed the process required under ecclesiastical law. To the contrary, Bishop Haynes "knew or should have known that her statement was not true" because the Diocese "had not followed the ‘whole process’ provided for in Title IV—or anything close to it." Compl. ¶¶ 68-70. For instance, Marshall had not yet met with the Title IV "Conference Panel," which was responsible for recommending a response to the bishop. Compl. ¶ 71 & n.4. Nor had Marshall had a hearing before the Title IV "Hearing Panel," which was responsible for making a "final determination." Compl. ¶ 72 & n.5.

Marshall alleges that Bishop Haynes exacerbated the parishioners’ concerns by how she answered their questions. When asked if the allegations involved children, she was "noncommittal," and "ambiguous," saying things like: "Not that I am aware of at this time," and "I don’t believe the school is involved." Compl. ¶ 88. She was also elliptical about ₂₆₃the actual sexual-misconduct allegations, saying only that they "crossed the line" of appropriate conduct for a priest:

So, the Title IV Complaint involves sexual harassment. And, specifically, boundary violations of a sexual nature … so … this was a way to let you know that … there were verbal behaviors and physical behaviors that crossed the line of what is appropriate between a priest and a parishioner or staff person ….

Compl. ¶ 93 (emphasis added). When one parishioner asked if the complaint involved innocent behavior that was misinterpreted, Bishop Haynes responded no, "That’s not what we’re dealing with." Compl. ¶¶ 96-97.

In July 2022, having been influenced by Bishop Haynes’s statements, the Vestry⁴ of Redeemer asked the bishop to sever ties with Marshall and to "bypass the remainder of the Title IV process." Compl. ¶¶ 126, 129, 133. Marshall claims that the "Vestry’s vote was cast under the pretext of a Title III action." Compl. ¶ 127. He says that Title III of the canons "allows the Vestry to sever...