United States of America v. Dillard

Filing 155

MEMORANDUM AND ORDER granting 128 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 3/7/2013. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

)
)
Plaintiff,
)
)
v.
)
)
ANGEL DILLARD,
)
)
Defendant. )
______________________________ )

Case No. 11-1098-JTM-KGG

MEMORANDUM & ORDER
GRANTING PLAINTIFF’S MOTION TO COMPEL
The Court now considers Plaintiff’s Motion for an Order Compelling
Defendant to Answer Certain Interrogatories, Requests for Admission, and
Requests for Production. (Doc. 128.) The disputed discovery requests information
concerning Defendant’s relationship and communications with Scott Roeder, an
inmate convicted of the murder of a Wichita physician who provided abortion
services, with another inmate who alleges that the Defendant solicited his
participation in unlawful activities against abortion providers, and information
concerning other communications between Defendant and jail inmates. These
communications occurred through a jail ministry program. Defendant objects that
the requested information is privileged under Fed.R.Evid. 501 and the clergycommunicant privilege. Because Defendant is not clergy, the privilege is

inapplicable and Plaintiff’s motion is GRANTED.
Defendant’s original responses to the disputed discovery included a variety
of objections which Defendant now claims she “maintains,” but does not brief or
support in her response to this motion. (See Doc. 136.) Those objections are,
therefore, waived.1 Additionally, the response indicates that Defendant maintains
objections only to Interrogatories 2, 9, 24 and 24 which, she asserts, seek
“confidential information within the clergy-communicant privilege.” The Court
understands her discovery objections to those interrogatories to be limited to that
issue. The Court understands her objections to other discovery requests identified
in the motion to be withdrawn and thus GRANTS the motion to compel responses
to those requests on that basis.
Defendant visited inmates at the Sedgwick County jail through a non-profit
religious ministries program with the mission of “ministering to inmates as they
deal with emotional, physical and spiritual needs.” (Doc. 136, at 2.) Defendant
was granted access to inmates by the jail through that program, and claims that she
signed an agreement to honor the “confidentiality” of inmates’ communications.
Id. Defendant does not claim that she is a member of the clergy. Defendant also
does not dispute Plaintiff’s claim that the information sought is relevant discovery,

1

Defendant also purports to preserve trial evidentiary objections, which are not at
issue in the present motion.

but objects only on the basis of privilege.
The burden of establishing a privilege is on the asserting party. Lewis v.
UNUM Corp. Severance Plan, 203 F.R.D. 615 (D. Kan. 2001). Additionally,
evidentiary privileges which restrict access to potentially relevant evidence are
strictly construed. Trammel v. United States, 445 U.S. 40, 50-51 (1980).
The present case is an action under federal law. Thus, federal, rather than
state, law provides the rules governing privilege. Federal Rule of Evidence 501
does not create a clergy-communicant privilege, but provides that in such cases the
“common law – as interpreted by United States courts in the light of reason and
experience – governs a claim of privilege.” There is a dearth of mandatory
authority from the Supreme Court, this Circuit, or this District holding that the
clergy-communicant privilege exists. However, it has been recognized in dicta as a
privilege which “recognizes the human need to disclose to a spiritual counselor, in
total and absolute confidence, what are believed to be flawed acts or thoughts and
to receive priestly consolation and guidance in return.” Trammel, 445 U.S. at 51.
The privilege is a long-standing tradition in American courts, is recognized in
Kansas state courts (K.S.A. § 60-429), and the parties have cited ample case law
from other jurisdictions which generally recognize the privilege. Plaintiff does not
take issue in this case with the general existence of the privilege. Neither does this
Court.

There is little authority that the privilege is founded in the right to free
exercise of religion guaranteed by the First Amendment to the United States
Constitution. Presumably, however, the classic application of the privilege, to
communications between a priest and penitent during confession, is supported
partly in the protection of that rite from governmental interference. However, there
is no law cited by Defendant which compels the Court to recognize a constitutional
privilege beyond the traditional privilege. Defendant has not presented evidence
that responding to the discovery requests would unconstitutionally chill the
exercise of her religious rights or of those of the jail inmates. See In re Motor
Fuel Temperate Sales Practices Litigation, 641 F.3d 470 (10th Cir. 2011) (claim of
privilege based on claim of chilling of First Amendment rights requires evidence).
The general assertion that confidentiality is important to counseling sessions is not,
in and of itself, enough.
The central question is whether the privilege applies when the defendant is
not a member of the clergy, but is a lay counselor providing religious counseling or
other support through a religious program. Defendant has cited one case for the
proposition that the privilege may attach to such communications. In the Viet Nam
War-era case of In Re Verplank, 329 F.Supp. 433 (D.C. Cal. 1971), a District
Court in California held that the privilege attached to communications by the staff
members of an ordained minister who were providing “draft” counseling. The

Court analogized the communications to those between a client and an attorney’s
staff, and found that the communications were intended to assist the clergyman in
providing counseling. This Court does not endorse the opinion in Verplank for the
reasons stated in the next paragraph. That opinion is inapplicable, however,
because the communications in the present case were not occurring on behalf of a
specific member of the clergy to assist that clergy member’s counseling.2
There is no other support for a claim that the privilege traditionally extends
beyond communications with clergy, and this Court disagrees with the opinion in
Verplank.3 The same First Amendment concerns urged by Defendant in support of
the privilege counsel against its expansion beyond clergy. This issue is one in
which the Court must protect the free exercise of religion, as guaranteed by the
First Amendment, without getting involved in defining religious practice, as
prohibited by the same Amendment’s establishment clause. Limiting the privilege
to clergy, a classification within the exclusive purview of the church, promotes the
essential purpose of the rule and keeps the Court out of the church’s affairs.
2

Evidence that the “counselors” were acting under the “supervision” of clergy
would not change this result. There is no evidence here that the communications were
done on behalf of (and thus communicated to) a clergy member, which would be required
under Verplank.
3

The Courts have struggled with the application to Catholic nuns, but have
extended the privilege when such were performing priestly functions. Eckmann v. Bd. of
Educ. of Hawthorne School District No. 17, 106 F.R.D. 70, 73 (E.D. Mo. 1985). Here
the Defendant does not claim that she holds any status in which she performs clerical
functions.

Extending the privilege to “counselors” and other lay members would require the
Court to undertake the constitutionally-hazardous task of analyzing whether
counseling was or was not “religious” – and possibly even balancing whether the
religious component of a communication is substantial enough to require
protection.4 The only other alternative would be to simply accept as unassailable
any claim of qualification, thus hobbling the Court’s power to control the
application of its own rules.
Defendant argues that the privilege applies not only to clergy, but also to “an
individual reasonably believed so to be by the person consulting him,” citing In re
Grand Jury Investigation, 918 F.2d 374, 385, n. 13 (3rd Cir. 1990). Defendant
would expand this language into a rule that would create a privilege whenever
either participant believed the communication would be confidential. However,
this language, from a proposed but not enacted federal rule, plainly covers only the
situation where the lay person reasonably believed the other to be a member of the
clergy. There is no evidence of that in the present case. It is also impossible to
find reasonable an expectation that non-clergy communications would be
privileged when Kansas state law does not protect such communications in state

4

Plaintiff argues that the Court should reject the claim of privilege because there is no
evidence the Defendant completed the jail’s forms for acting in a ministerial capacity, and that
when she visited Mr. Roeder she logged in as a “friend” rather than a “minister.” The Court’s
ruling makes an analysis of the Defendant’s activities unnecessary.

proceedings. See K.S.A. 60-249 (limiting the privilege to clergy).
The objections to the discovery requests identified in the motion are
overruled and the motion to compel is GRANTED. Defendant shall provide
supplemental responses to Plaintiff in compliance with this order within two (2)
weeks of the filing of this Order.

IT IS SO ORDERED.
Dated at Wichita, Kansas, this 7th day of March, 2013.

s/ KENNETH G, GALE
Kenneth G. Gale
United States Magistrate Judge