Monica L. McDowell Elvig v. Calvin Presbyterian Church Will Ackles

with whom KOZINSKI, GRABER, and FISHER, Circuit Judges, join, concurring in the order denying rehearing en banc:

Each of the dissents from the denial of rehearing en banc recognizes that our decision in this case follows our earlier decision in Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999). Judge Kleinfeld, Judge Gould, and Judge Bea contend that both Bollard and the case before us constitute constitutionally forbidden intrusions into the employment relationship between a church and its minister. Judge Kleinfeld also contends that our decisions in Bollard and this case conflict with the decisions of our sister circuits.

I disagree with both contentions. I write to emphasize that the rule announced in Bollard and applied in this case is consistent with the constitutional underpinnings of the ministerial exception, and that every court that has addressed a minister’s ability to recover damages for sexual harassment has reached the same conclusion we have.

I. Intrusion into the Relationship Between a Church and Its Minister

Title VII does not contain an exception for plaintiffs employed as ministers. Rather, the “ministerial exception” to…

concurring in the order denying rehearing en banc:

Judge Kleinfeld’s allegory to the infamous slaying of Archbishop (now Saint) Thomas Becket puzzles me. Judge Klein-feld’s point seems to be that lawsuits of the type brought by Elvig breach the “ ‘wall of separation’ between church and state,” Kleinfeld dissent at 798, in the following way: Churches will have a reason to fire ministers like Will Ackles because they fear the cost and burden of civil liability, rather than because of their performance as ministers. See id. at 803. And the ease of bringing such lawsuits, Judge Kleinfeld implies, can burden religion just as surely as direct government regulation (represented in its extreme form by Murder in the Cathedral).

While I oppose killing archbishops, either directly or softly with lawsuits, I don’t understand how Judge Kleinfeld’s approach helps. Suppose Judge Kleinfeld is right, and it would violate religious liberty for Henry Plantagenet to rid himself of Becket by getting Elvig’s ur-grandmother to sue him on a trumped-up harassment claim. It seems to me that Henry could achieve the same effect — through the same means — by getting a church janitor or bookkeeper to bring…

dissenting from denial of rehearing en banc:

For the one of every five Americans who live in our circuit’s jurisdiction, the “wall of separation” between church and state now has a gate. The gate is one-way. The government may pass through to regulate the internal affairs of a church, but the church must remain on its own side. If King Henry II had lived in the Ninth Circuit, he would have won his struggle with Thomas Becket, Archbishop of Canterbury, without having to insinuate “Will no one rid me of this turbulent priest?” 1 to incite his knights to murder. Though King Henry’s goals in the struggle were, among other things, to gain secular jurisdiction of disputes over ecclesiastical patronage and to require archbishops and bishops to get permission from him before leaving the country, he stopped short of asserting control of selection and expulsion of priests. 2 Since selection and expulsion of ministers are the only protected reli *799 gious spheres in this court’s shriveled version of the First Amendment, we would have granted him what he wished.

Elvig, a Presbyterian minister, brought Title VII sexual harassment and retaliation claims, claiming that a pastor at the church…

dissenting from denial of rehearing en banc:

I would have heard this case en banc, and dissent from our denial of such rehearing. As I noted in my concurrence from the original Elvig panel decision, the result in this case seems to be compelled by Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir.1999). There may be room for reasonable jurists to disagree on that, as did Judge Trott in his initial panel dissent, but I think Bollard controlling absent en banc review. At the same time, I continue to have reservations about whether Bollard was correctly decided.

In part my reservations about Bollard stem from constitutional concerns such as those that are raised by Judge Kleinfeld in his able dissent from denial of rehearing en banc. I am not yet certain I would agree with all that he would hold on the constitutional issues, but the issues that Judge Kleinfeld has voiced warrant a broader and a fresh hearing.

In part my reservations about Bollard stem from practical litigation concerns such as those that are raised by Judge Bea in his thoughtful dissent from denial of rehearing en banc, and that were earlier expressed by Judge Trott’s articulate dissent…

Concurrence by Judge W. FLETCHER; Concurrence by Judge KOZINSKI; Dissent by Judge KLEINFELD; Dissent by Judge GOULD; Dissent by Judge BEA.

ORDER

Judge Fisher has voted to deny the petition for rehearing en banc, and Judges Trott and Gould have voted to grant the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing en banc, filed August 4, 2004, is DENIED.

dissenting from denial of rehearing en banc:

I heartily agree with Judge Trott that given the Ellerth/Faragher 1 affirmative defense, ... every step the Church took to respond and react to Elvig’s claims will be reviewed by the district court to determine where it was reasonable.” Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 973 (9th Cir.2004). From a practical point of view, such an inquiry would necessitate the court’s adjudication of discovery issues, presentation of evidence, instructions to the jury, etc.

This “review” might involve the following questions:

Discovery

Composition of the Investigating Committee

Instruction to the Jury

... and on and on. Challenges to the “reasonableness” of the Church’s process and decision would be limited only by what limits there are to the ingenuity of counsel and the special pleading of activist organizations urging them on.

This review of what is reasonable would require consideration of what a reasonable employer would have done and would do to prevent the harassment under same or similar circumstances. Would such a review involve evidence of what processes are provided by other similarly situated employers? What evidence…

397 F.3d 790 Monica L. McDowell ELVIG, Plaintiff-Appellant, v. CALVIN PRESBYTERIAN CHURCH; Will Ackles, Defendants-Appellees. No. 02-35805. United States Court of Appeals, Ninth Circuit. February 11, 2005. Judith A. Lonnquist, Esq., Law Office of Judith Lonnquist, Seattle, WA, for Plaintiff-Appellant. Elizabeth K. Reeve, Reeve Shima, David E. Powell, Seattle, WA, for Defendants-Appellees. Before: TROTT, FISHER and GOULD, Circuit Judges. 1 Concurrence by Judge W. FLETCHER; Concurrence by Judge KOZINSKI; Dissent by Judge KLEINFELD; Dissent by Judge GOULD; Dissent by Judge BEA. ORDER 2 Judge Fisher has voted to deny the petition for rehearing en banc, and Judges Trott and Gould have voted to grant the petition for rehearing en banc. 3 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. 4 The petition for panel rehearing en banc, filed August 4, 2004, is DENIED. 5 W. FLETCHER, Circuit Judge, with whom KOZINSKI, GRABER, and FISHER, Circuit Judges, join, concurring in…