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Some puzzlements about the Julie Mabus v. St. James Episcopal Church opinions (Part One of Two)

Last Thursday, the Mississippi Supreme Court decided the second appearance of Mabus v. St. James Episcopal Church. This is the case in which Julie Mabus sued an Episcopal Church in Jackson and its priest for participating in a meeting between her and her husband, former Governor Ray Mabus, in which she was confronted about evidence in their divorce, a meeting the priest knew that Ray Mabus was secretly taping.

I don’t have a simple take-away from these cases, and am going to post in two parts, first focusing on what the court said in Mabus II, and then in the second post comparing the two cases, with fairly extensive discussion of facts that raise questions about the logic of the decisions.

The priest, McBride, had married the Mabuses and had baptized  their children.  Julie Mabus was a lifelong member of the church. Ray Mabus invited McBride to a meeting where he intended to confront Julie, and told McBride he intended to secretly tape it on advice of his divorce attorney.  The purpose of the meeting was to obtain leverage in the divorce, although he did not tell her the purpose.

When she learned of the taping during the divorce proceeding, she brought a seven-count complaint against the priest and the church.  In the first appeal, the circuit judge– Judge Bobby DeLaughter– had dismissed all of the claims except a fraudulent concealment claim, and the Supreme Court affirmed.

In discovery on remand, Julie Mabus testified in a deposition that she “suspected Ray was taping her.” Based on that testimony, Judge DeLaughter held that she could not be the victim of fraudulent concealment.  Justice Waller’s majority opinion in Mabus II rejects this as error because her testimony was not as contradictory as DeLaughter suggested in his ruling, but goes on in to affirm for another reason– that “Julie is unable to establish that McBride had a legal duty to disclose any knowledge he had of the recording.”  Because there was no fiduciary relationship between Julie and McBride, he had no duty to disclose and her fraudulent concealment claim fails.

In the first appeal, the court had held that the relationship of priest and parishoner is not a fiduciary one– that is, it is not a particular relationship of trust inherent in the relationship without proof of more.

I’m confused by this in multiple ways.  Given that in round one, the court affirmed a summary judgment that there was no fiduciary relationship, why did this claim survive to round 2?  Is this decision really just a result of the “law of the case” doctrine, the rules governing what questions a court can reopen on a second appeal– in other words, did the decision about fiduciary relation in Mabus I really foreclose the claim in Mabus II, and the majority opinion here just doesn’t spell it out?  That’s the import of a key sentence in Justice Kitchen’s opinion– he states that he only agrees with the result because he’s bound by law of the case to reach it.  If that’s so, then I’ll ask again:  Why didn’t the first appeal resolve the entire case?

The Mabus II opinion then turned to her effort to reopen the parts of the case she lost in Mabus I.  Specifically, she argued that deposition testimony by McBride and Ray contradicted the affidavits McBride had used to get summary judgment in the first round on the issue of fiduciary relation.

From the way the argument is summarized in the opinion, and from the deposition and affidavit excerpts, I see no real contradiction between what McBride said in his affidavit before the first appeal and in his testimony, particularly about facts that could point to a fiduciary relation.  There are some in Ray’s testimony– he said in the affidavit that this was in no way a counseling session.  In his deposition, he said McBride was present “to seek guidance and counseling.”   You can read for yourself in the footnotes on pages 9-12 of the opinion.

Justice Kitchens in his concurrence (which Justice Dickinson joins in a (unspecified) part)  begins by noting “the sad end of a sad case,” and that he’s joining the majority because of the prior opinion, but that he has “strong reservations.”

When this case first visited this Court nearly five years ago, the majority concluded that Julie Mabus had put forth no evidence to suggest that she depended upon Jerry McBride in his role as her priest. Mabus v. St. James Episcopal Church, 884 So. 2d 747 (Miss. 2004) (Mabus I). With respect, I am convinced that this finding was erroneous.  … [T]he record supplied ample evidence to contradict the Court’s 2004 conclusion that “Julie was not dependent upon McBride, nor [did] she repose[ ] any trust or confidence in him . . . .” Mabus I, 884 So. 2d at 759. During their surreptitiously recorded colloquy, McBride repeatedly referred to his longstanding status as Julie’s priest to encourage her comfort and trust. See, e.g., id. at 759-60 (“McBride: . . . [T]his is not an ambush on my part, I’m here because I love you, I didn’t want to be here.”). …

Therein lies the ultimate paradox of Mabus I. Although it identified an important legal principle that should afford the protection of confidentiality to the faithful, this Court denied that protection to the person whose misplaced trust in a clergyman first brought that dilemma to this Court’s attention. Because of Mabus I, Mississippians should not fear Julie Mabus’s legal fate, but the decision securing that peace of mind denied it to the very woman whose name henceforth will be synonymous with that protection.

Justice Kitchens is saying explicitly that he’s concurring in ruling for McBride solely because of the law of the case doctrine– that he’s bound to follow the prior ruling.  If that had been what the majority opinion had said, I’d be less confused (although I’d still wonder why round one didn’t resolve this case altogether). And I wonder if some effort to work logically through some exceptions on the limits of law of the case– this rule does not completely handcuff a court and force it to perpetuate error– may give Justice Kitchens more of an out than he realizes.

Part two is here.

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