Kathleen DeBruin v. St. Patrick Congregation

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Appeal No. 2010AP2705 Cir. Ct. No, 200CV1813
WISCONSIN COURT OF APPEALS

DISIRICT II
KATHLEEN DEBRUIN,
PLAINTIFF-APPELLANT, FI LED
V. AUG 17, 2011
ST. PATRICK CONGREGATION, A. John Voel ker

Acting Clerk of
Suprene Court

DEFENDANT-RESPONDENT.

CERTIFICATION BY WISCONSIN COURT OF APPEALS

Before Brown, C,J., Neubauer, P.J., and Reilly, J.

Pursuant to WIS. STAT. RULE 809.61 this court certifies the appeal in
this case to the Wisconsin Supreme Court for its review and determination.

ISSUE

In light of the Wisconsin Supreme Court’s decision in Coulee
Catholic Schools v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868, are
religious organizations immune from common law breach of contract lawsuits

brought by ministerial employees?
FACTS

On July 1, 2009, Kathleen DeBruin signed a one-year contract to
serve as the “director of faith formation” for St. Patrick Congregation, a Catholic

No. 2010AP2705
2
parish that is part of the Archdiocese of Milwaukee. The contract stated that
DeBruin “shall not be discharged during the term of this contract, without good
and sufficient cause, which shall be determined by [St. Patrick].” St. Patrick fired
DeBruin on October 5, 2009, for allegedly failing to do a background check.
DeBruin subsequently filed suit against St. Patrick for breach of
contract. St. Patrick responded by filing a motion to dismiss, arguing that its
decision to fire DeBruin was protected by Coulee, the Free Exercise Clause of the
First Amendment of the U.S. Constitution, and the Freedom of Conscience
Clauses in Article I, Section 18 of the Wisconsin Constitution. The circuit court
granted St. Patrick’s motion and dismissed the case. DeBruin appealed, arguing
that Coulee does not prohibit common law breach of contract claims.
DISCUSSION
In Coulee, the Wisconsin Supreme Court held that the Free Exercise
Clause of the U.S. Constitution and the Freedom of Conscience Clauses in the
Wisconsin Constitution protect religious organizations from employment
discrimination lawsuits when the employee’s position is important and closely
linked with the religious mission of the organization. Coulee, 320 Wis. 2d 275,
¶¶67, 88. This is known as the “ministerial exception.” See id., ¶¶39, 67. As the
“director of faith formation” for a Catholic parish, DeBruin unquestionably is a
ministerial employee. See id., ¶67. What is not clear, is whether St. Patrick is
immunized from DeBruin’s common law breach of contract lawsuit by virtue of
DeBruin’s status as a ministerial employee.
The court in Coulee cautioned that “[w]e do not mean to suggest that
anything interfering with a religious organization is totally prohibited.” Id., ¶65.
While the Wisconsin Supreme Court made clear that a state law could not interfere

No. 2010AP2705
3
with a religious organization’s ability to hire or fire ministerial employees,
DeBruin is not seeking to apply a state law. Rather, she is asking for a court to
exercise jurisdiction over her common law breach of contract claim. In Rayburn
v. General Conference of Seventh-Day Adventists, 772 F. 2d 1164, 1171 (4th Cir.
1985)—a case relied upon heavily by the Wisconsin Supreme Court in Coulee—
the Fourth Circuit Court of Appeals stated that “[o]f course churches are not—and
should not be—above the law. Like any person or organization, they may be held
liable for their torts and upon their valid contracts.” Several state and federal
cases have supported this viewpoint.
In Minker v. Baltimore Annual Conference of United Methodist
Church, 894 F.2d 1354, 1355 (D.C. Cir. 1990), a Methodist minister sued the
United Methodist Church for allegedly denying him a promotion because of his
age. In addition to an age discrimination claim—which was dismissed on free
exercise grounds—Minker brought two breach of contract claims. Id. One of the
contract claims was based on an alleged promise to find the minister a more
appropriate congregation and to provide him with a raise, while the other contract
claim was based on passages from the Methodist Book of Discipline concerning
the assignment of pastorships. Id. The court dismissed the breach of contract
claim based on the Book of Discipline, holding that the court lacked jurisdiction to
interpret a religious text. Id. at 1358-59. The court, however, allowed the breach
of an oral contract claim to go forward, as “[a] church is always free to burden its
activities voluntarily through contracts, and such contracts are fully enforceable in
civil court.” Id. at 1359. Furthermore, “courts may always resolve contracts
governing ‘the manner in which churches own property, hire employees, or
purchase goods.’” Id. (quoting Jones v. Wolf, 443 U.S. 595, 606 (1979)). While
the minister’s breach of an oral contract claim could potentially affect the church’s

No. 2010AP2705
4
free exercise rights, the D.C. Circuit held that the minister had alleged enough to
survive a motion to dismiss and that the trial court should be permitted “to control
the case so as to protect against any impermissible [church and state]
entanglements.” Minker, 894 F.2d at 1360.
Many appellate courts have held that a trial court may adjudicate a
breach of contract claim against religious organizations so long as the basis of the
claim is secular and not religious. The Third Circuit has held that a chaplain at a
Catholic university was permitted to bring a fraudulent misrepresentation claim
and a breach of contract claim against the university because those claims would
not impinge on the university’s free exercise rights. Petruska v. Gannon
University, 462 F.3d 294, 310 (3d Cir. 2006). The court stated that “contractual
obligations are entirely voluntary,” and that “[e]nforcement of a promise, willingly
made and supported by consideration, in no way constitutes a state-imposed limit
upon a church’s free exercise rights.” Id.
The New Jersey Supreme Court has said that the threshold question
that a court must determine is whether the underlying dispute is secular or
“ecclesiastical.” McKelvey v. Pierce, 800 A.2d 840, 851 (N.J. 2002). As the court
stated:
If … the dispute is truly of a religious nature, rather than
theoretically and tangentially touching upon religion, [then]
the claim is barred from secular court review. If, however,
the dispute can be resolved by the application of purely
neutral principles of law and without impermissible
government intrusion (e.g., where the church offers no
religious-based justification for its actions and points to no
internal governance rights that would actually be affected),
there is no First Amendment shield to litigation.
Id. at 856 (emphasis in original). In reinstating a former Catholic seminarian’s
contract and tort claims against a Catholic Diocese and a number of priests, the

No. 2010AP2705
5
New Jersey Supreme Court noted that “[d]eclining to impose neutral and
otherwise applicable tort or contract obligations on religious institutions and
ministers may actually support the establishment of religion, because to do so
effectively creates an exception for, and may thereby help promote, religion.” Id.
at 844, 857 (emphasis in original).
Some courts, however, have been less willing to adjudicate contract
claims against religious organizations when the claim involves a clergy member.
As one court has stated, “religious organizations must be allowed to select their
own clergy, free from government interference.” Bourne v. Center on Children,
Inc., 838 A.2d 371, 378 (Md. Ct. Spec. App. 2003). If a clergy member’s primary
duties are religious, some courts will refuse to examine his or her employment
contract. See id. at 380. Similarly, many courts have held that they will not
review a fired clergy member’s breach of contract claim when the firing was based
on theological grounds. See Lewis v. Seventh Day Adventists Lake Region
Conference, 978 F.2d 940, 942-43 (6th Cir. 1992); Nevius v. Africa Inland
Mission Int’l, 511 F. Supp. 2d 114, 120 (D.D.C. 2007); Leavy v. Congregation
Beth Shalom, 490 F. Supp. 2d 1011, 1027 (N.D. Iowa 2007); El-Farra v. Sayyed,
226 S.W.3d 792, 795-96 (Ark. 2006); Black v. Snyder, 471 N.W.2d 715, 720
(Minn. Ct. App. 1991). One court, however, stated that had the discharged rabbi
“brought a claim for breach of contract based on [the congregation’s] refusal to
provide the agreed-upon insurance coverage or failure to make the annual
compensation adjustment, it may well be that the Court could adjudicate those
claims by factual determinations that do not involve the court in internal,
ecclesiastical matters.” Leavy, 490 F. Supp. 2d at 1027. Another court, while
holding that it had no jurisdiction over a breach of contract claim related to the
firing of a priest, nonetheless held that a trial court could decide the issues in the

No. 2010AP2705
6
priest’s complaint related to unpaid salary, benefits, and missing property.
Dobrota v. Free Serbian Orthodox Church St. Nicholas, 952 P.2d 1190, 1194-95
(Ariz. Ct. App. 1998). The fact that the trial court might have to examine church
documents related to the priest’s compensation did not matter because “[a] court
may ‘interpret provisions of religious documents involving property rights and
other nondoctrinal matters as long as the analysis can be done in purely secular
terms.’” Id. at 1196 (citations omitted). See also Favalora v. Sidaway, 995
So. 2d 1133, 1135 (Fla. Dist. Ct. App. 2008) (per curiam) (“[C]ourts are not
forbidden from examining a religious organization’s internal laws or structure,
especially where the inquiry is relevant to a third party’s purely secular tort or
contract claims.”).
While DeBruin is a “ministerial employee,” it is not clear whether
she is a “member of the clergy.” Wisconsin’s marriage statute defines a member
of the clergy as a “spiritual advisor of any religion, whether the advisor is termed
priest, rabbi, minister of the gospel, pastor, reverend or any other official
designation.” WIS. STAT. § 765.002(1). For purposes of the clergy-penitent
privilege, a clergy member “is a minister, priest, rabbi, or other similar functionary
of a religious organization, or an individual reasonably believed so to be by the
person consulting the individual.” WIS. STAT. § 905.06(1)(a). A broad definition
of clergy member that encompasses a “director of faith formation” would provide
St. Patrick with a stronger argument that it cannot be subjected to a breach of
contract lawsuit for firing DeBruin. This argument is undermined, however, by
the fact that St. Patrick’s decision was based not on ecclesiastical grounds, but
rather on DeBruin’s alleged failure to do a background check.
While the federal and state case law that we have cited seems to
indicate that religious organizations are not immune from common law breach of

No. 2010AP2705
7
contract claims from ministerial employees, the Wisconsin Supreme Court has
stated that the Wisconsin Constitution provides broader religious liberty
protections than the First Amendment of the U.S. Constitution. See Coulee, 320
Wis. 2d 275, ¶66. As the Wisconsin Supreme Court is the primary lawmaking
court in this state, we believe it should have the opportunity to flesh out the
Coulee standard. We therefore respectfully ask the Wisconsin Supreme Court to
accept this certification and resolve the question of whether the religious liberty
protections found in the Wisconsin Constitution are so broad as to shield religious
organizations from common law breach of contract lawsuits brought by ministerial
employees.

No. 2010AP2705
8