United States of America v. Dillard
Filing
174
MEMORANDUM AND ORDER granting in part and denying in part 164 defendant's Objections to Order of Magistrate Judge; vacating in part Order of the Magistrate Judge (Dkt. 155); granting in part and denying in part government's Motion to Compel (Dkt. 128); and granting in part and denying in part defendant's Motion for Protective Order (Dkt. 141). Signed by District Judge J. Thomas Marten on 4/19/2013. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
United States of America,
Plaintiff,
vs.
Case No. 11-1098-JTM
Angel Dillard,
Defendant.
MEMORANDUM AND ORDER
The government alleges in this civil action under 18 U.S.C. § 248(a)(1) that the
defendant Angel Dillard sent a threatening letter to Dr. Mila Means, a provider of abortion
services. The general background of the case has been fully discussed by the court in its
prior Order denying Dillard’s Motion to Dismiss, in which it found that a rational recipient
of the one-page letter could deem it a threat. (Dkt. 30). But the court has also denied the
government’s request for a preliminary injunction, finding that such an interpretation is
possible but not compulsory, given actual text of the letter. (Dkt. 16).
The matter is now before the court on the defendant’s appeal from certain
evidentiary rulings by the Magistrate Judge. Specifically, Dillard challenges the Magistrate
Judge’s determination that she may not invoke the clergy-penitent privilege to shield the
content of her prison ministry communications with Scott Roeder because she is not a
formally ordained minister.
The court finds that the Objection should be sustained in part, because the modern
federal clergy-penitent privilege is not restricted to persons with formal ordination. The
policies underlying the privilege apply with equal force to lay persons who regularly
conduct religious counseling sessions, and the uncontroverted facts establish that Dillard’s
prison ministry visits were religious in nature.
Facts
The following facts were presented to the Magistrate Judge. The underlying
documents are uncontroverted, although the parties dispute the relevance and weight of
the facts asserted by their opponent.
The facts establish that the chaplaincy at the Sedgwick County jail is operated by
Christian Ministries to Offenders, Inc. (CMO). CMO is a ministry which has been
recognized by the government as a § 501(c)(3) non-profit organization that has served
inmates in the Sedgwick County Jail for more than thirty years. In Wichita, CMO operates
under the authority of the Sedgwick County Sheriff’s Office and the detention facility, and
is the approved ministry for all religious and spiritual programming at the jail.
The mission of CMO is to minister to inmates as they deal with emotional, physical,
and spiritual needs. The vision of CMO includes visiting with each person being detained
and sharing with them the love of God. According to CMO, its goal is “to touch the
spiritual lives of as many inmates as possible with the ‘born-again’ message of Jesus
2
Christ.” CMO currently seeks to achieve that goal by supplying prisoners with chapel
services, group bible studies, one-on-one biblical counseling, and an array of Christian
study materials.
Angel Dillard and her husband, Dr. Robert Dillard, acted as ministerial agents of
CMO, having been granted ministerial privileges at the Sedgwick County Jail. In
conjunction with those ministerial privileges, each of the Dillards was issued a badge with
photo ID which permitted them to conduct ministry work within the jail under the auspices
of CMO and the Sedgwick County Sheriff’s Office.
To receive their ministerial privileges at the jail, the Dillards, like other applicants,
were required to complete a seven-page application form. CMO expects all applicants
(including the Dillards) to maintain the confidentiality of inmates and inmate
communications conducted during jail ministry, and the applicants (including the Dillards)
were required by the Sedgwick County Sheriff’s Office to sign an agreement, within the
application form, to honor the confidentiality of inmates who came into contact with jail
chaplains or ministry workers. The Dillards, and all other applicants, were also required
to (a) provide references, to include an ordained religious leader from a faith-based
organization; (b) demonstrate prior ministry or counseling experience; (c) complete an
interview process; (d) demonstrate and affirm their adherence to core Christian beliefs; and
(e) successfully pass a background check. Applicants were also required to comply with
all rules and regulations of the jail.
All applicants, including Angel and Rob Dillard, were required to complete a
3
“Ministerial Privilege Affidavit.” The ministers listed as references by the applicants were
interviewed by CMO. When CMO reviewed the applications of potential ministry workers
such as the Dillards, CMO sought to determine the home church of the applicant and
obtain a letter of validation from that church.
The chaplain’s office, through CMO, conducts services twice a day, five days a week,
with an additional chapel service on Sundays. CMO also provides one-on-one counseling
with inmates, often using Angel Dillard to conduct that ministry. During the application
process, and later while on the job, Angel Dillard demonstrated to her CMO supervisor the
previous experience which CMO looked for in the areas of both general ministry and the
“one-on-one” counseling format used at the jail. Angel Dillard and Dr. Dillard were
regarded as having done an outstanding job in the jail ministry, and their presence is
missed by CMO.
In order to qualify for ministerial privileges, applicants such as the Dillards were
required to demonstrate that they subscribed to basic tenets of the Christian faith and
complied with the CMO “Statement of Faith.” Dr. and Mrs. Dillard demonstrated
commitment to these principles during the application process and interviews, and
maintained commitment to these principles while serving as ministers working out of the
chaplain’s office and serving the jail population.
In addition, ministry applicants were provided training which emphasized the fact
that inmates and ministers expected counseling sessions to be confidential, that such
confidentiality is essential to maintain the effectiveness of the ministry, and that jail
4
ministry workers are expected to strictly honor inmate confidentiality.
CMO operates in partnership with, and under the authority of, the Sedgwick County
Sheriff's Office. Not only does CMO observe and honor the confidentiality of the inmates,
but the sheriff’s office expects and requires jail ministers to maintain such communications
as confidential. The inmates also expect counseling communications with spiritual advisors
to be confidential.
According to the evidence from CMO, the guarantee of confidentiality is absolutely
necessary for inmate evangelistic efforts and ministry work to be successful. Such ministry
often focuses on repentance, forgiveness, and grace. These goals require that inmates be
able to discuss their past behavior freely with the ministers, without fear of legal
consequences, embarrassment, public ridicule or recrimination. Thus, CMO trains all
ministry workers in the chaplain’s office that communications with inmates must be kept
confidential. Accordingly, both the inmates and the ministers have an expectation of
confidentiality. That is, the content of meetings between inmates and ministers is to be held
strictly confidential. If inmates were to become fearful that their communications to
ministers might be divulged to law enforcement authorities, the ministry would be
rendered ineffective and little meaningful inmate contact would occur. Without the
guarantee of confidentiality, the ministry of spiritual advisors and religious counselors
would be rendered largely useless. Evangelistic and rehabilitation efforts would be far less
successful.
Before Angel Dillard met Scott Roeder for the first time, at the Sedgwick County Jail,
5
she and her husband, Dr. Robert Dillard, already had an established ministry.
In 2001, Angel Dillard’s severely handicapped son, Deacon, died at the age of
twelve. She had devoted her time to providing care to him twenty-four hours a day, and
after his death she was able to spend more time on Christian ministry to others. That year,
she and her husband began serving in the worship ministry at Immanuel Baptist Church,
of the Southern Baptist denomination. In 2004, she assisted her husband in an officially
recognized position of youth ministry at Immanuel Baptist. In August 2006 or thereabouts,
The Dillards began serving as youth pastors and worship ministers at Summit Church, also
affiliated with the Southern Baptist denomination. In her ministry at both churches, Angel
Dillard provided spiritual counseling, advice, and instruction to youth and adults.
Sometime in 2007, Angel and Rob Dillard established their own ministry, Mustard
Seed Ministries, a ministry of broad scope in which they ministered in a variety of
capacities, whatever they felt God calling them do. This included opening their home as
a shelter to abused women and their children, as well as to traveling missionaries and
others, including a pastor who could not find housing. They also provided a wide range
of Christian counseling, including counseling for teenagers, pre- and post-abortion
counseling, and substantial counseling and spiritual mentoring to abused women and
victims of domestic violence. The Dillards also filled pulpits at various churches and home
fellowships when the regular pastors were absent. The Dillards frequently provided music
and worship ministry at churches. Over the years, they received formal training at ministry
seminars and training sessions for ministries, including multi-denominational seminars
6
and week-long ministry camps.
Before becoming involved in ministry counseling to inmates at the Sedgwick County
jail, Angel Dillard obtained a Bachelor’s Degree in psychology at Wichita State University.
In the course of earning her degree, she obtained substantial experience, including
counseling victims of domestic abuse and counseling related to abortion. These counseling
efforts continued after she obtained her degree. Her internship for her degree was
conducted at a detention facility, where she provided trained counseling, including
spiritual counseling, to detainees. Dillard completed approximately eight to ten hours in
the Religious Studies Department while earning her psychology degree.
Angel Dillard first learned about Scott Roeder after he was jailed. Dillard felt
spiritually called to minister to him because it appeared no one else would help him. She
wrote him offering to minister to him at the jail with spiritual advice, counsel, and Bible
study if he desired. In reply, he invited her to minister to him at the jail.
Dillard signed in as a ministry visitor before her first meeting with Mr. Roeder, and
she maintained that role thereafter. Eventually, she became a friend to Roeder, as she did
with many inmates to whom she ministered. Nevertheless, the first and foremost purpose
of her every visit, letter, or phone call with Roeder was to minister as a Christian counselor
and spiritual advisor, typically including prayer and Bible study. Roeder always seemed
eager to talk with her about the Bible or to pray. It was her understanding that he regarded
their discussions as confidential ministerial visits, as did she. She understood that
confidentiality was especially important to inmates who had not yet been to trial, such as
7
Roeder at that time. Dillard obtained official ministerial privileges at the Sedgwick County
jail through CMO. She subsequently ministered to over a hundred inmates in chapel
meetings and during the one-on-one counseling. Throughout this ministry, she applied
basic principles of Christian doctrine and complied with the CMO “Statement of Faith.”
As a minister to inmates, Angel Dillard was trained to follow all rules of the facility
and not to engage in unlawful conduct. As a Christian counselor, her goal was to follow
the principles of Christ. According to Dillard, at no time in her jail ministry did she engage
in or plan unlawful criminal acts, nor did she communicate with inmates to that end.
In its Responses to Dillard’s Motion for Protective Order and her Objection to the
Order of the Magistrate Judge, the government argues that the facts demonstrate that
Dillard did not provide ministerial services to Roeder. First, it notes that in a print-out of
Dillard’s prison visits to Roeder and other prisoners, which includes a column apparently
referencing the “Type” of visit, the visits to Roeder are listed as “F” for “friend,” while her
subsequent visits to other prisoners are identified as “M,” for “minister.” It is unclear who
supplied this description to the visits, but it is also notable that all of the approximately 50
visits to other prisoners (including the “M” for minister visits) happened after Dillard
stopped visiting Roeder. The most natural inference is simply that, as Dillard continued her
CMO ministry, she learned to fill out the prison forms differently, rather than, as the
government would have it and in the face of the overwhelming weight of the other
evidence, her visits to Roeder were secular rather than ministerial in nature.
The next argument advanced by the government is similar, observing that in some
8
of the actual logs recording individual visits by Dillard, the term “friend” appears in
handwriting. The logs, however, merely permit a visitor to self-identify a “Relationship to
Inmate,” without requiring or suggesting that the visitor select from mutually-exclusive
categories of “minister” or “friend.” To the contrary, in the forms submitted by the
government, every other visitor supplies a specific family relationship, such as “Mom,” or
“Sister.” The government’s negative inference might have some weight if Dillard had
described herself as a “friend,” while other visitors on the same page had listed themselves
as “minister,” or otherwise indicated a clerical relationship. But, on the forms submitted
by the government, none have done so; all list family relations.
Certainly nothing in the equivocal evidence cited by the government indicates these
subsequent “M” visits to other prisoners were different in any substantial way from her
earlier visits to Roeder. And nothing in the evidence contradicts the clear evidence that
Dillard—who was participating in the CMO ministry program, having received CMO
training, and indeed wore a CMO visitor badge during her visits—visited Roeder as a part
of the CMO ministry. The overwhelming weight of the evidence is that the Roeder visits
were a part of a regular prison ministry by a recognized religious organization.
Next, the government argues that Dillard herself did not think her visits were
privileged, citing a May 17, 2010 letter to Roeder. It makes this argument by noting that
Dillard acknowledged in the letter that she was not ordained. But, read in context, Dillard
was not indicating in the letter that she did not believe the ministry was not religiously
based—indeed, the opposite is true. In the letter, Dillard indicated only that she knew she
9
had not complied with any “paperwork” requirements for ordination. But Dillard
specifically proceeds to state that she had been doing ministerial work “for years,” and,
more importantly, that she believed ordination to be a regulation of man rather than God.
As the court finds below, the federal clergy-penitent privilege does not require “paperwork” ordination.
The other factual arguments advanced by the government are even less substantial.
Thus, it notes that the CMO volunteer forms that Dillard submitted in support of her claim
of ministerial privilege are blank, including the provision for the submission of a reference
by another minister. But this is simply because the exhibit is explicitly presented as a form.
The form was submitted as attachment to an affidavit, the truthfulness of which the
government has not challenged, which directly and explicitly avers that “[a]ll applicants,
including Angel and Robert Dillard, were required to complete” the attached forms. (Dkt.
141-1, ¶ 7). Pastor Gilmore Williams further avers specifically that Dillard not only
supplied such information, but that ”[t]he ministers which the applicants listed as
references were also interviewed.” (Id.)
Finally, the government argues that the communications cannot be privileged
because in two letters Dillard herself contemplated the possibility that the communications
might become public. Read in context, however, neither letter suggests that Dillard
believed her communications with Roeder fell outside the ministerial privilege. In the first
letter, Dillard mentions that she was visited by the FBI and tells Roeder “[t]hey are
scrutinizing everyone who writes to you and to whom you write, so don’t say anything
10
you don’t want to be public knowledge!” The clear import of the letter is that Roeder
should not write anything incriminating to her. Similarly, in the second letter, she simply
advised Roeder not to divulge potentially privileged matters until their next visit, which
would the following month.
Finally, the government cites the paragraph in the CMO Volunteer Application
Form in which prospective prison volunteers promise to “HONOR CONFIDENTIALITY
OF OFFENDERS.” The text of the paragraph provides that the volunteers would not “use
any information concerning persons in the custody or under the Supervision of the
Sedgwick County Sheriff’s Office for any reason without prior written approval from the
Sedgwick County Sheriff’s Office.”
The government takes the last clause to suggest that the Sheriff’s office has to power
to unilaterally waive the ministerial privilege. This reads the provision too broadly. Read
in context, the provision simply informs would-be volunteers that disclosure cannot occur
without official Sedgwick County approval—that is, that written approval is a necessary,
but not sufficient, condition for the voiding of the otherwise explicit requirement of
confidentiality. Finally, it should be noted also that it is not the Sedgwick County Sheriff’s
Office which seeks to void the privilege here, but the United States.
Ruling of the Magistrate Judge
The Magistrate Judge rejected Dillard’s claim of privilege, on the grounds that
Dillard herself is not an ordained minister. The Magistrate Judge rejected Dillard’s reliance
11
on In re Verplank, 329 F.Supp. 433 (D.C. Cal. 1971), where the court held that ordination was
not a prerequisite to the clergy-penitent privilege, observing that in Verplank the
communication, while routed through church staff, was ultimately directed at an ordained
minister. In addition, the court in Verplank compared the staff (who were advising draft
resisters) to the staff of a law firm, 329 F.Supp. at 436, a consideration which would not be
relevant here.
The Magistrate Judge also expressed the concern that granting the privilege to
Dillard could embroil the courts in difficult line drawing with respect to the application of
the privilege. Requiring formal ordination
keeps the Court out of the church’s affairs. 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.
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.
(Dkt. 155, at 6).
To the defendant’s argument that the privilege should nonetheless apply because
Dillard reasonably believed the prison ministry’s communications were privileged, a
position taken by the Third Circuit in In re Grand Jury Investigation, 918 F.2d 374, 385, n. 13
(3rd Cir. 1990), the Magistrate Judge made two observations. First, that In re Grand Jury
Investigation was decided under proposed–but never adopted–Federal Rules governing the
scope of various privileges. Second, he determined that Dillard could not reasonably have
12
believed her communications with Roeder were privileged because the relevant Kansas
statute, K.S.A. 60-429, provides for privilege only where the clergy is ordained. (Dkt. 155,
at 5).
Conclusions of Law
The court finds that the determination of the Magistrate Judge cannot be sustained
as to the core of the present dispute, the content of direct communications between Dillard
and Roeder in prison. Contrary to the conclusion of the Magistrate Judge, K.S.A. 60-429
does not require formal ordination as an absolute prerequisite. Indeed, the Kansas statute
has been singled out as a model by one leading commentator precisely because it does not
require formal ordination. Under “the Kansas scheme ... ordination is a sufficient, but not
a necessary, condition for qualification as a ‘clergyman.’” Wright & Graham, FED. PRAC. &
PROCEDURE: EVIDENCE, § 5613, 104-105 (1992) (emphasis added). The same authority
describes the Kansas statute as “elaborate,” in that it “contains one definition for ordained
clerics and another for those who lack ordination.” Id. at 5611, at 71; § 5613 at 104-105 n. 91.1
Specifically, the Kansas statute recognizes a privilege for “penitential
1
Notably, the government’s Response brief makes no effort whatsoever to support the
Magistrate Judge’s conclusion that a lack of ordination is fatal to Dillard’s privilege claim. (Dkt.
78, at 4). Rather, as noted above, the government makes the factual argument that the
Magistrate Judge could have denied the motion for protective order on the grounds that Dillard
was not really visiting Roeder as a minister. As the court mentioned previously, this argument
rests on a highly selective reading of equivocal evidence from prison records. The
uncontradicted evidence clearly establishes that Dillard visited Roeder as a part of the
independent, pre-existing CMO prison ministry program.
13
communication” which is defined as
any communication between a penitent and a regular or duly ordained
minister of religion which the penitent intends shall be kept secret and
confidential and which pertains to advice or assistance in determining or
discharging the penitent's moral obligations, or to obtaining God's mercy or
forgiveness for past culpable conduct.
K.S.A. 60-429(a)(5) (emphasis added). In turn the statute carefully defines both “regular”
and “ordained” ministers who may invoke the privilege:
As used in this section, (1) the term “duly ordained minister of religion”
means a person who has been ordained, in accordance with the ceremonial
ritual, or discipline of a church, religious sect, or organization established on
the basis of a community of faith and belief, doctrines and practices of a
religious character, to preach and to teach the doctrines of such church, sect,
or organization and to administer the rites and ceremonies thereof in public
worship, and who as his or her regular and customary vocation preaches and
teaches the principles of religion and administers the ordinances of public
worship as embodied in the creed or principles of such church, sect, or
organization; (2) the term “regular minister of religion” means one who as
his or her customary vocation preaches and teaches the principles of religion
of a church, a religious sect, or organization of which he or she is a member,
without having been formally ordained as a minister of religion, and who is
recognized by such church, sect, or organization as a regular minister.
The Kansas statute thus explicitly contemplates that the privilege may be invoked
by an nonordained “regular” minister. The requirements of regularity and organizational
recognition further supply the answer to the concern posed by the Magistrate Judge, that
the courts might otherwise be forced to answer difficult line-drawing questions as to the
religious practices of given sects. The Kansas statue is a model precisely because it strikes
a middle ground between formal ordination (which is unwise and could lead to technical
issues of its own, see Wright & Graham, § 5613 at 104) and the sort of completely ad hoc
14
analysis rightly feared by the Magistrate Judge. The statute creates independent and
objective standards for“regular ministers,” and so relieves the courts from having to decide
on a case by case basis whether a given invocation of the privilege is valid.
And here there can be no question but that Dillard’s prison visits were part of a
regular prison ministry program. She conducted over 50 visits to numerous prisoners.
These visits were part of a recognized and long-standing prison ministry conducted by
CMO. In order to participate in the CMO program, Dillard had to undergo careful scrutiny
and review, and had to explicitly agree to keep prison communications confidential. While
conducting her visits, she was required to wear a CMO identification badge. The
government’s contention, based upon the equivocal evidence from prison sign-in logs, that
Dillard’s prison visits were not ministerial in nature simply flies in the face of the
overwhelming evidence that the visits were a part of an existing program by a recognized
prison ministry.
This conclusion is also consistent with the outlook taken by the proposed Federal
Rule of Evidence 506, which explicitly broadened the application of the privilege to persons
who may lack formal ordination. As the court noted in Verplank, proposed Rule 506
does not require such an attainment [ordination] in order for the privilege to
apply. The Advisory Committee note states that ‘(a) fair construction of the
language requires that the person to whom the status is sought to be attached
be regularly engaged in activities conforming at least in a general way with
those of [a Catholic priest, Jewish rabbi, or minister of] an established
Protestant denomination, though not necessarily on a full-time basis.’ 51
F.R.D. [315,] 372 [(1971)]. Under the circumstances here concerned, it would
appear that the activities of the other counselors at the McAlister Center
conform ‘at least in a general way’ with a significant portion of the activities
15
of a minister of an established Protestant denomination, to the extent
necessary to bring them within the privilege covering communications to
clergymen.
329 F.Supp. at 436. See also In re Grand Jury Investigation, 918 F.2d 374, 385 n. 14 (3rd Cir.
1990) (adopting the broader view of proposed Rule 506, and citing possible First
Amendment problems that would arise were it to limit the privilege to Roman Catholic
penitential communications). Further, the proposed Rule 506 not only eliminates any
requirement of ordination, the Advisory Committee notes explicitly states that the privilege
may apply even if the minister performs his duties on a part-time basis, so long as his
activity is regular in nature. See also Cox v. Miller, 296 F.3d 89, 108 (2d Cir. 2002) (noting
under Establishment Clause analysis that the clergy-penitent privilege in some cases may
apply to part-time Alcoholics Anonymous members).
Of course, as the Magistrate Judge noted, proposed Rule 506 (like other rules
governing specific evidentiary privileges) has not been formally adopted. But it would be
a mistake to read into this lack of adoption a rejection of those proposals. Rather than
explicitly codifying the proposed evidentiary privilege rules, Congress chose to adopt Rule
501, which provides that privileges in federal court “shall be governed by the principles of
the common law as they may be interpreted by the courts of the United States in the light
of reasons and experience.” But Congress explicitly cautioned that this preference for a
common law approach should not be used to infer disapproval of the proposed rules:
It should be clearly understood that, in approving this general rule as to
privileges, the action of Congress should not be understood as disapproving
any recognition of a psychiatrist-patient, or husband-wife, or any other of the
16
enumerated privileges contained in the Supreme Court rules. Rather, our
action should be understood as reflecting the view that the recognition of a
privilege based on a confidential relationship and other privileges should be
determined on a case-by-case basis.
S. Rep. No. 93-1277, 93rd Cong., 2d Sess. 4, reprinted in 1974 U.S.CODE CONG. AND ADMIN.
NEWS, 7051, 7059. Accordingly,
in many instances, the proposed rules, [used as] [s]tandards, remain a
convenient and useful starting point for examining questions of privilege.
The [s]tandards are the culmination of three drafts prepared by an Advisory
Committee consisting of judges, practicing lawyers and academicians [and]
were adopted by the Supreme Court....
... [T]he Advisory Committee in drafting the Standards was for the most part
restating the law currently applied in the federal courts.
J. Weinstein & M. Berger, WEINSTEIN’S EVIDENCE, at ¶ 501[03].
In particular, proposed Rule 506 – with its broad view of the clergy-penitent
privilege, remains “an appropriate starting point for discerning the existence and scope of
the clergy-communicant privilege.” In re Grand Jury, 918 F.2d at 379. As that court
recognized, the proposed Rule 506 was firmly grounded in a long historical tradition.
The history of the proposed Rules of Evidence reflects that the
clergy-communicant rule was one of the least controversial of the
enumerated privileges, merely defining a long-recognized principle of
American law. Although most of the nine privileges set forth in the proposed
rules were vigorously attacked in Congress, the privilege covering
communications to members of the clergy was not. Indeed, virtually every
state has recognized some form of clergy-communicant privilege. The
inclusion of the clergy-communicant privilege in the proposed rules, taken
together with its uncontroversial nature, strongly suggests that the privilege
is, in the words of the Supreme Court indelibly ensconced in the American
common law.
Id. at 380-81 (internal quotations and citations omitted). See also Cox v. Miller, 296 F.3d 89,
17
102 (2d Cir. 2002). The Supreme Court has observed that “[t]he priest-penitent privilege
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 v. United States, 445 U.S. 40, 45 (1980).
Applying the standards of proposed Rule 506 to the present action renders the same
result as the Kansas privilege statute. As noted earlier, proposed Rule 506 does not require
formal ordination, and applies to any “minister, priest, rabbi, or other similar functionary
of a religious organization, or an individual reasonably believed so to be by the person
consulting him.” The facts are uncontroverted that Dillard was acting as a functionary of
CMO, which is an explicitly religious organization. Moreover, regardless of her actual
status with CMO, it also is uncontroverted that Dillard visited Roeder as a part of the CMO
program and while wearing a CMO identification badge. Accordingly, Roeder would have
“reasonably believed” that Dillard had this status, and thus the privilege would apply.
This broader view of the privilege is also taken by a leading commentator:
A number of hierarchical evangelical Protestant churches allow confession
to be made to any member of the church. An early [1818] case held that no
privilege attached to such confessions, though it is not clear that the court
would have upheld a privilege even to a clergyman.... Religious writers have
long argued that the privilege should apply to the laity as well as the clergy,
and this argument will probably be heard in the courts as more and more
churches adopt a participatory mode of governance and liturgy, and involve
lay members in spiritual counseling.... Since [contrary] opinions do not rest
on any strong claim of policy, when courts realize that there is no good
reason for denying the privilege to non-hierarchical churches, they will
extend the privilege to lay members who undertake clerical functions in
otherwise hierarchical churches.
18
Wright & Graham, FED. PRAC. & PROCEDURE: EVIDENCE, § 5613, at 115-16 (footnotes
omitted).
This is the appropriate result here. The uncontroverted facts establish that Dillard
visited Roeder as a part of a prison ministry program. The visits to Roeder were for the
purpose of spiritual guidance, were conducted after Dillard received training in counseling,
and where she was required to sign an oath to uphold the confidentiality of the
communications. These communications clearly would be privileged had they been
conducted by a Roman Catholic priest or a formally-ordained Protestant minister.
The lack of formal ordination should not eliminate the privilege, as, in the words
of the commentator, there is “no good reason for denying the privilege” merely because
Dillard was acting as a lay minister. The Magistrate Judge’s natural and understandable
caution about intruding or inquiry into the religious affairs of particular sects does not
constitute a good reason. Proposed Rule 506 eliminates the need for any such inquiry, by
turning the court’s focus to objective indicia of the regularity of the ministry activity. Here,
the evidence establishes that Dillard’s prison visits with Roeder were a part of a regularlyconducted, explicitly Christian ministry program, and the privilege thus applies.
Two additional concerns guide the court’s decision. First, restricting the privilege
to formally ordained clergy raises distinct constitutional concerns. Several courts have
expressed concern that such a restriction may violate the Establishment Clause. See In re
Grand Jury Investigation, 918 F.2d at 374, 385 n. 14; Waters v. O'Connor, 209 Ariz. 380, 103
P.3d 292, 296–97 (Ct. App. Div. 1 2004), cert. denied, 546 U.S. 905 (2005) (observing that
19
restriction of the evidentiary privilege to ordained clergy “would raise serious concerns
under the Establishment Clause of the First Amendment to the United States
Constitution”). Following the broader requirements of proposed Rule 506 or statutes such
as K.S.A. 60-429 eliminates the need to address such constitutional issues.
Second, the court notes the adverse effect of a contrary ruling. Limiting the federal
clergy-penitent privilege to formally ordinated ministers would have the inescapable effect
of shutting down prison ministry programs not only in Kansas, but throughout the nation.
Programs such as CMO depend on the volunteer services of lay ministers, and could not
survive if the private communications between prisoners and ministry volunteers were
unprotected from government scrutiny. As a consequence, ministry programs serving
thousands of inmates would be directly imperilled. Notably, the government has failed to
challenge the affidavit testimony of Pastor Gilmore Williams showing that, in the absence
of confidentiality, such prison ministries would fail.
The only remaining question with respect to Dillard’s prison ministry
communications with Roeder is whether the content of their letters are privileged. The
court finds that they are. These letters arose in direct connection with the prison ministry
program. While much of the defendant’s evidence centers on the actual counseling
sessions, some of it is broader in nature. Thus, there is evidence from Pastor Williams that
“inmates also expect counseling communications with spiritual advisors to be
confidential.” (Aff. ¶ 11). The government has failed to controvert this evidence.
The clergy-penitent privilege is not restricted to face-to-face communications.
20
Proposed Rule 506 applies to any “communication” which is generally germane to the
recipients role as “spiritual advisor.” There is no requirement that the actual writing be
penitential or sacramental in nature. Wright & Graham, FED. PRAC. & PROCEDURE:
EVIDENCE, § 5615, at 138.
[U]nder modern forms of spiritual direction and religious counselling where
the cleric or para-cleric enters into a continuing relationship with many
persons, there is a need to keep records of communications to and from the
penitent if the cleric is to give the sort of ongoing guidance that these new
cleric-penitent relationships are supposed to provide. The analogy to the
psychotherapist suggested in the Advisory Committee's Note is some
evidence that the drafters of Rejected Rule 506 would likely agree with those
who have said that the modern penitent's privilege should apply to writings,
including church records.
Id.
Other Discovery
The defendant’s Objections are broad, seeking review of the Magistrate Judge’s
rulings (Dkt. 155) “in their entirety,” including the denial of her requested Protective Order
(Dkt. 141), and the granting of government’s Motion to Compel (Dkt. 128). These rulings
address evidentiary matters well beyond the actual content of Dillard’s communications
with Roeder.
Specifically, the government by interrogatories asked Dillard to:
• Please identify by date and time every communication you have had with Scott
Roeder, either in person, by phone, by letter, by email, by text message, or by
any other means.
• Please describe the contents of each communication [with Roeder].
21
• Please explain the nature and purpose of your prison ministry.
• Please list all individuals you have visited in the last three years through your
prison ministry.
• Please list all prisons or jails you have entered in the last three years through
your prison ministry.
• Please describe how often you enter prisons or jails as part of your prison
ministry.
• Please identify by date and time every communication you have had with
Robert Campbell, either in person, by phone, by letter, by email, by text message,
or by any other means.
• Please list all payments you have made or offered to make to Robert Campbell
in the last three years, and explain why you made those payments.
By Requests for Admission, the government asked Dillard to
8. Admit that you have had contact with Scott Roeder after May 31, 2009.
9. Admit that you have had written communications with Scott Roeder after
May 31, 2009.
10. Admit that you have had telephone conversations with Scott Roeder after
May 31, 2009.
11. Admit that you have visited Scott Roeder while Scott Roeder was in jail.
12. Admit that you have visited Scott Roeder while he has been in prison.
13. Admit that you have deposited funds into Scott Roeder’s jail and/or
prison inmate account.
Finally, the government asked Dillard to produce “All letters, electronically stored
information. and other communication exchanged with Scott Roeder.”
The Magistrate Judge’s opinion not only rejected Dillard’s claim of privilege as a
22
general matter, the opinion also found that Dillard had essentially waived her objections
to anything other than “Interrogatories 2, 9, 2[3], and 24." (Dkt. 155, at 2). While Dillard
broadly argued in her Motion for Protective Order that “[t]he information sought by the
government ... in depositions, interrogatories, or request for production,” (Dkt. 141, at 35),
the Magistrate Judge found she had waived any specific objection to anything other than
the four interrogatories specifically mentioned in her Response to the Motion to Compel
(Dkt. 136).
Assuming that Dillard now challenges the determination of waiver in her broad
attack on the Magistrate Judge’s ruling “in its entirety,” the court finds no error.
First, Dillard’s current Objections to the Magistrate Judge’s rulings only discusses
the application of the clergy-penitent privilege. The Objections make no mention of the
word “waiver,” or any discussion of the reasons the Magistrate Judge may have deemed
these issues waived.
Second, even if the additional interrogatories and requests for admission or
production were addressed on the merits, the information is proper discovery, except as
otherwise expressly stated in the present order. As noted above, the court finds that the
contents of Dillard’s direct communications with Roeder are privileged information. The
other information is not privileged. Rather, information such as the date and number of
prison visits simply provide a necessary threshold for the court to examine the claim of
privilege. As the burden is on Dillard to establish her right to the privilege, supplying this
necessary information under seal cannot infringe on the privilege itself. See Motley v.
23
Marathon Oil, 71 F.3d 1547, 1550 (10th Cir. 1995) (“The party seeking to assert a privilege
has the burden of establishing its applicability”). See also In re The City of New York, 607 F.3d
923, 947 (2d Cir. 2010) (“To assess both the applicability of the privilege and the need for
the documents, the district court must ordinarily review the documents in question”).
With respect to information surrounding Dillard’s communications with Campbell,
the information is discoverable on several grounds. First, Dillard has the burden to show
why these communications would be subject to privilege, but in the course of three
extensive briefs—her Response to the Motion to Compel (Dkt. 136), her Motion for
Protective Order (Dkt. 141), and her Objections to the Magistrate Judge’s rulings (Dkt.
164)—Dillard mentions Campbell by name only once,2 and never discusses the issues
surrounding her communications with him.
There are substantial reasons to doubt that the clergy-penitent privilege applies to
Campbell. According to the government, Campbell is a former prison inmate who has
claimed that Dillard tried to hire him to stalk Dr. Means. Campbell wrote to the court on
March 26, 2012, stating, “I personally know and did some things for Angel.” (Dkt. 128-5).
While never addressing Campbell in any of her briefs to the court, Dillard has stated
in supplemental answers to interrogatories that she has never met Campbell. She states that
he began to contact her in April of 2010, after hearing of her prison ministry, and included
2
The exception is a tangential reference in the Response to the Motion to
Compel, in which Dillard, in the course of an argument that discovery is unnecessary
because the government could obtain much of the information from the prison itself,
includes the payments made to Campbell as an example.
24
a request for money for medication and toiletries. She contributed $25 to his prison
account. Afterwards, according to Dillard, Campbell repeatedly attempted to contact the
Dillards with requests for money. After Campbell was released from prison, and after the
government commenced the present action based on the letter to Dr. Means, Dillard states
that Campbell again contacted her, essentially trying to blackmail her by stating that she
had hired him to stalk Dr. Means. She represents that she has never visited Campbell in
prison, that Campbell has again contacted the Dillards to demand a payment of $2000, that
Campbell has left a threatening message on the Dillards’ answering machine, and that an
investigating officer told the Dillards that Campbell has a history of violent behavior. (Dkt.
148-1, at 9).
Campbell may well be a crackpot and blackmailer, and all of this may eventually
supply a valid ground for the ultimate exclusion in limine of evidence relating to Campbell.
Such a result may be appropriate given the inherently suspect nature of the evidence, its
prejudicial impact, and distance from the central issue in the case — whether the January
19, 2011 letter sent to Dr. Means was threatening to a reasonable person in her position,
with the knowledge then available to her. (Dkt. 30, at 4-6).
For present purposes, however, Dillard’s factual contentions are fatal to any present
claim of privilege. According to Dillard, she has never met Campbell, a dangerous
blackmailer who sought to victimize her by making escalating demands for money after
she initially made a small contribution to his prison account. Whether Dillard or Campbell
is telling the truth is irrelevant; both versions of the relationship are incompatible with a
25
claim of clergy-penitent privilege. Moreover, even if such a relationship existed, the
modern view reflected in proposed Rules 506 and 511 is that the penitent is the holder of
any privilege, and has the right to waive it. Thus, even if the privilege were otherwise
available, Dillard cannot invoke it over Campbell’s apparent resistance.
In summary, the court finds that Dillard’s the content of the communications
between Dillard and Roeder are privileged. The other information sought by the
government is not privileged.
IT IS ACCORDINGLY ORDERED this 19th day of April, 2013, that the defendant’s
Objections (Dkt. 164) are sustained in part and denied in part; the Order of the Magistrate
Judge (Dkt. 155) is vacated in part; the government’s Motion to Compel (Dkt. 128) is
granted in part and denied in part; the defendant’s Motion for Protective Order (Dkt. 141)
is granted in part and denied in part, all as consistent with the present Order.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
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