In the Supreme Court of Florida. Case no. 93,832. Rabbi Robert A. Goodman, Petitioner, vs. Temple Shir Ami and Richard Ashenoff, Respondents.

Transcription

1 In the Supreme Court of Florida Case no. 93,832 Rabbi Robert A. Goodman, Petitioner, vs. Temple Shir Ami and Richard Ashenoff, Respondents. Answer Brief of Respondents On discretionary review from the Third District Court of Appeal Peter A. Miller, Esq. Melvin S. Black, Esq. Conroy, Simberg & Ganon, P.A S.W. 27th Avenue 155 South Miami Avenue, Suite 1111 Suite 202 Miami, FL Miami, FL and and Law Office of Robert S. Glazier Clark D. Mervis, Esq. The Ingraham Building, Suite S.W. 27th Avenue 25 S.E. Second Avenue Suite 202 Miami, FL Miami, FL (305) (305) Attorneys for Temple Shir Ami Attorneys for Ashenoff

2 TABLE OF CONTENTS T a b l e o f A u t h o r i t i e s iv Introduction 1 Statement of the Case and Facts 1 S u m m a r y o f t h e A r g u m e n t 17 Argument 18 I. The courts lack jurisdiction to decide this lawsuit between a synagogue and its rabbi 18 A. Constitutional limitations on the jurisdiction of courts to decide matters involving churches and synagogues 19 B. The decision of who will speak for a synagogue as its rabbi goes to the heart of constitutionallyprotected religious activity, and may not be second-guessed by the courts 20 C. Consideration of Rabbi Goodman s lawsuit would inexorably result in a violation of the First Amendment 22 D. Rabbi Goodman s attempts to avoid the constitutional prohibition were properly rejected by the circuit court and the district court of appeal Courts refuse to allow clergy to sneak part of their claim into court 26 2

3 2. Prohibition applies even if plaintiff asserts that claim does not involve religious doctrine Prohibition applies even if plaintiff asserts that religious institution violated its internal by-laws Congregational/hierarchical distinction irrelevant in this context 35 II. No basis for civil court involvement when Rabbi Goodman failed to exhaust available review within the Temple 38 III. The trial court did not abuse its discretion in its rulings on discovery 40 IV. Dismissal of Rabbi Goodman s claims does not deny him constitutionally guaranteed redress for his injuries 42 Conclusion 43 V. Cross-petition: The courts should not exercise jurisdiction over Rabbi Goodman s claim for breach of the first contract 42 Certificate of Service and Font 44 3

4 TABLE OF AUTHORITIES Buchanan v. Second Tabernacle Missionary Baptist Church, 1996 WL (Ohio Ct. App. July 25, 1996) Burgess v. Rock Creek Baptist Church, 734 F. Supp. 30 (D. D.C. 1990) Chavis v. Rowe, 459 A.2d 674 (N.J. 1983) Church of God in Christ v. Graham, 54 F.3d 522 (8th Cir. 1995) Crowder v. Southern Baptist Convention, 828 F.2d 718 (11th Cir. 1987) Dobrota v. Free Serbian Orthodox Church, 1998 Ariz. App. Lexis 15 (Ariz. Ct. App. Jan. 29, 1998)... 28, 42 Downs v. Roman Catholic Archbishop of Baltimore, 683 A.2d 808 (Md. Ct. App. 1996) EEOC v. The Catholic University, 83 F.3d 455 (D.C. Cir. 1996) Engel v. Vitale, 370 U.S. 421 (1962) Farley v. Wisconsin Evangelical Lutheran Synod, 821 F. Supp (D. Minn. 1993) First Baptist Church v. State of Ohio, 591 F. Supp. 676 (S.D. Ohio 1983) Goodman v. Temple Shir Ami, 712 So. 2d 775 (Fla. 3d DCA 1998) Hadnot v. Shaw, 826 P.2d 978 (Okla. 1992)

5 Higgins v. Maher, 258 Cal. Rptr. 757 (Ct. App. 1989)... 27, 29, 34, 42 Howard v. Covenant Apostolic Church, 1997 Ohio App. LEXIS 4180 (Ohio Ct. App. Sept. 19, 1997) Jeambey v. Synod of Lakes and Prairies, 1995 WL (Minn. Ct. App. Oct. 24, 1995) Jones v. Wolf, 443 U.S. 595 (1979) Kaufmann v. Sheehan, 707 F.2d 355 (8th Cir. 1983) Kleppinger v. Anglican Catholic Church, 715 A.2d 1033 (N.J. Super. Ct. 1998) Lewis v. Seventh Day Adventist Lake Region Conference, 978 F.2d 940 (6th Cir. 1992) McDonnell v. Episcopal Diocese of Georgia, 381 S.E.2d 126 (Ga. Ct. App. 1989) Mutual of Omaha Insurance Co. v. Gold, 669 So. 2d 362 (Fla. 5th DCA 1996) Natal v. Christian and Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989) Olson v. Luther Memorial Church, 1996 Minn. App. LEXIS 213 (Minn. Ct. App. Feb. 20, 1996)... 30, 31 Savoie v. State, 422 So. 2d 308 (Fla. 1982) Scharon v. St. Luke s Episcopal Presbyterian Hospital, 929 F.2d 360 (8th Cir. 1991)... 20, 22 Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976)

6 Singleton v. Christ the Servant Evangelical Lutheran Church, 541 N.W.2d 606 (Minn. Ct. App. 1996) Smith v. Calvary Christian Church, 1998 Mich. App. Lexis 332 (Mich. Ct. App. Dec. 4, 1998) St. John s Presbytery v. Central Presbyterian Church, 102 So. 2d 714 (Fla. 1958) Temple Shir Ami v. Esquiroz, 672 So. 2d 550 (Fla. 3d DCA 1996) Tidman v. The Salvation Army, 1998 Tenn. App. Lexis 475 (Tenn. Ct. App. July 15, 1998) Tran v. Fiorenza, 934 S.W.2d 740 (Tex. Ct. App. 1996)... 20, 30 Welter v. Seton Hall University, 608 A.2d 206 (N.J. 1992)... 21, 33 Yaggie v. Indiana-Kentucky Synod Evangelical Lutheran Church in America, 860 F. Supp (W.D. Ky. 1994), aff d, 64 F.3d 664 (6th Cir. 1995) 21, 29 Yaggie v. Indiana-Kentucky Synod, 64 F.3d 664 (6th Cir. 1995) (unpublished decision, available on Westlaw, 1995 WL )... 30, 33 Young v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184 (7th Cir. 1994)... 16, 21, 34 6

7 INTRODUCTION This case presents some issues which this Court has not previously passed upon: Should Jewish holidays be observed based on where they fall on the Hebrew calendar, or the Gregorian calendar? Should a prayer shawl (talis) be made available for a congregant at a reform synagogue? Should a rabbi personally light the memorial (yahrzeit) candles? These questions have been of interest to the members of Temple Shir Ami. They are certainly of interest to Rabbi Robert Goodman. But we submit that these issues, and the other issues concerning who should serve as the spiritual leader of Temple Shir Ami, are fundamentally religious issues over which the civil courts may not exercise jurisdiction. STATEMENT OF THE CASE AND FACTS Temple Shir Ami is a synagogue in Miami. In 1991 the Temple chose Rabbi Robert A. Goodman to serve as its rabbi. A rabbi serves as the spiritual leader of a synagogue. (R. 495). Rabbi Goodman himself explained the role of the rabbi: a rabbi is a spiritual leader; a rabbi serves the people in the congregation as a moral and religious example, a leader in worship. (R. 920). In its contract with Rabbi Goodman, Temple Shir Ami specified that Rabbi Goodman was to perform all rabbinical duties as commonly performed by one in his 1

8 position, including the leading of worship services, and to serve all necessary pastoral and community needs. (R ). The contract provided that Rabbi Goodman was to promote the aims and goals of the Temple. (R ). The first contract Temple Shir Ami s contract with Robert Goodman had an original duration of two years, from July 1, 1991 to July 1, (R. 13) At the end of those two years, there was an automatic one-year extension, unless notice of termination was given by either party. (R. 13). In March 1993, when the time for the one-year extension was approaching, serious concerns over the rabbi s performance caused the Temple s executive committee to recommend that the option for the third year of the Rabbi s contract not be exercised. (R. 24, 508, 876; TA 50; TB 21). The Temple s board of directors, however, rejected the executive committee s recommendation, and instead exercised the option for the third year. (R. 24, 508, 887; TB 22, 26). At that time, several dissenting members quit the temple, and Rabbi Goodman s supporters thus held nearly all the seats on the board. (TA 51). 2

9 Discussions concerning a second contract In late 1993 and early 1994 the Temple and Rabbi Goodman began negotiations for a new contract. (R. 4). These negotiations were governed by two significant terms of the original contract. First, the original contract provided that any modification or renewal would not be binding unless the same is evidenced in writing and signed by the parties. (R. 19). Second, all negotiations for a future contract had to be completed no less than 90 days prior to the termination of the contract. (R. 18). Since the contract ended on June 30, 1994, negotiations had to be completed by the end of March The Rabbi alleged that in February 1994 he and the Temple (through its board of directors) reached an agreement to extend his employment at the Temple for three years, with an option for two more years, with the terms memorialized in a memo. (R. 4, 892). However, there was no signed contract, despite the provision in the 1991 contract that a renewal had to be in writing and signed by the parties. Rabbi Goodman admits that he never signed a renewal contract. (R ). Rabbi Goodman claims that an enforceable contract was entered into. However, the only document which discusses the terms of the alleged contract indicates that The contract package for the Rabbi be accepted as negotiated, except that a volunteer committee would be... appointed to discuss with the rabbi the issue of his performing life cycle events (other than funerals) for non-members of TSA. (R. 125, emphasis 3

10 added). Also, the memo indicates that teaching at the University of Miami with associated salary would be further negotiated at a later date. (R ). The actual mechanics of the contract were left to be spelled out by the Temple s attorney. (R. 125). As the president of the Temple explained, The final contract we hadn t completed. We had never completed a contract. (R. 567; TA 50). The executive committee of the Temple decides that it does not want Robert Goodman to be the Temple s Rabbi Some time between mid-february and late-march 1994, members of the executive committee began to have doubts about whether they wanted to have Rabbi Goodman as the Temple s rabbi for an additional three (or more) years. Because of these concerns, the executive committee met on March 24, The president of the Temple explained that all of the concerns raised at the meeting related to the Rabbi s rabbinical behavior. (R. 575). There was a discussion of identifying what issues, what all the issues were relative to rabbinical behavior and what actions, where should we go, what do we need to do next. (R. 585). There were a multitude of concerns raised about the Rabbi. (R. 778). There were various behavioral elements. Various patterns. (R. 779). All the items discussed were rabbinical in nature. (R. 587). Some of the concerns related to the Rabbi s violation of confidences of congregants. (R ). There were discussions of inappropriate remarks by the Rabbi to members of the congregation 4

11 attending services or ceremonies. (R ). After discussing and analyzing the matter, the members of the executive committee decided to strongly suggest to the full board of directors that negotiations with the Rabbi be discontinued and that the Rabbi be informed that he should pursue other employment. (R. 592; TA 55). The executive committee members decided to take the issue to the full board of directors prior to 90 days before the end of the contract, in accordance with the contractual requirement that negotiations be completed 90 days before the end of the contract. (R. 8; TA 63). The executive committee meeting was on Thursday night, March 24th. In order to avoid embarrassing the Rabbi, who was to be honored that weekend, the executive committee took no immediate action. (R. 599). On Monday night, March 28th, however, several leaders of the Temple met with Rabbi Goodman and told him that he should resign or that he might be fired. (R ; TB 42). The Rabbi refused to resign, and a meeting of the board of directors was called for the next night, March 29th. (R. 902, 906). This date was only two days in advance of the ninety-day deadline by which negotiations had to be completed. (R ). The executive committee believed it had the responsibility to finish negotiations by the ninety-day deadline. (R. 580). The by-laws provide that notice of board meetings should be given three days 5

12 ahead of time, or as soon as practical. (R. 105). The Temple president explained that the board meeting was held on less then three days notice in order to abide by the 90- day contract negotiation deadline. (R. 580). In any event, even under the limited notice 26 of the 28 or so board members attended the board meeting. (TA 79). The Board of Directors decides against renewing Rabbi Goodman s contract The events at the board of directors meeting on Tuesday, March 29, 1994, form an important part of the Rabbi s complaint. During the meeting, various concerns about the Rabbi were discussed. There were discussions of the Rabbi s performance. (R. 978). There were discussions about continuing breaches of confidence by the Rabbi. (TB 94). There were discussions of whether or not there should be talis (prayer shawl) available for the congregation. (TB 104). There was a discussion of the night when the yahrtzeit (memorial) candles were not lit, and the Rabbi himself went down and lit them. (R. 978; TB 95). Some board members didn t like the way he ran a Chanukah service when we had our potato latkes [pancakes] afterwards. (R. 978; TB 106). The board members discussed the fact that the Rabbi wanted to celebrate the holidays when the holidays are supposed to be celebrated.... Like if Sukkot came up on Wednesday the Temple wanted to celebrate it on a Friday. [The Rabbi] felt we should celebrate it on a Wednesday. (R. 978; TB 106). There was discussion of the fact that the Rabbi had wanted to order 6

13 new prayer books for the high holidays, but the board had voted it down, because they were expensive. (R. 980). At the meeting there was also a discussion of an incident in Chicago involving the Rabbi. (R. 819). According to the Rabbi s complaint, board member Richard Ashenoff stated at the board meeting that he had undertaken an investigation of Rabbi Goodman and that his investigation had revealed that Rabbi Goodman had committed a crime in Chicago by striking the senior rabbi at the temple where Rabbi Goodman was then employed. According to the Rabbi, Mr. Ashenoff also told the board that following this incident, the temple in Chicago terminated Rabbi Goodman s employment which, in turn, prompted Rabbi Goodman to unjustifiably file and prosecute an action against the temple. (R. 17, 819, ). This incident had not been discussed at the executive committee meeting a few days earlier, and was not the focus of the general board meeting. (R. 782, , 819). When asked about the role this discussion had in the decision about Rabbi Goodman, one participant said, little or none. (TA 55-56). The president of the Temple testified that the board used this information not to decide about Rabbi Goodman s employment, but to note the importance of following procedures in not renewing the Rabbi s contract: I became aware of this altercation in Chicago and was basically warned to be careful on what actions we took in that we would probably be sued by the Rabbi. (TA 62-63). There 7

14 is no evidence that any discussions regarding this incident took place outside the meetings where the directors of the Temple were discussing the Rabbi s continued employment. In his deposition, Rabbi Goodman admitted that there had been an incident in Chicago, and admitted that as a result of the fight he left the temple, and admitted that there was a settlement. However, he denied culpability, or that he was fired, or that he filed a lawsuit: The senior rabbi... went into a rage, didn t like something I said and just went crazy.... [I] left the congregation, and through an attorney said, pay me to the end of the first year of my two year contract and that was it..... And that s what occurred, and, so, my payment period ended June 30th. June 1 I began employment at Congregation Beth Am, of Wheeling, Illinois.... So I was technically not out of work. I never sued them because there was an agreement, and I was a victim of assault and battery. (R ). The Rabbi was given an opportunity to speak during the board meeting, and made a statement on his own behalf. (R. 613, ). He talked about his service to the congregation, that he would like to stay as part of the congregation, and that he would like the opportunity to renew his contract. (R. 841). The board of directors, following the earlier recommendation of the members of the executive committee, voted against proceeding with a renewal contract for Rabbi Goodman. (R. 17, 853). Nineteen board members voted against renewing the Rabbi s 8

15 contract, five voted in favor of renewal, and one board member abstained. (R. 24, 853). Events after the meeting of the Board of Directors The day after the meeting, the Temple s president wrote to its members that While meeting to discuss details of the Rabbi s contract, circumstances regarding the Rabbi s continued inappropriate conduct surfaced. Although no one action constituted reason for censure, the multitude of issues, along with the pattern of previous concerns, forced the executive committee to re-evaluate its position. (R. 24). At about the same time that the letter was sent, the board of directors authorized and instructed its members and others to call the members of the Temple and advise them of the events. (R. 18). According to the complaint, during these conversations statements were made that Rabbi Goodman had violated confidences and committed a crime amounting to aggravated battery. (R. 18). After these events, Rabbi Goodman continued to serve until his extended 1991 contract expired on June 30, (R ). During this time the Temple agreed that the Rabbi could attend an out-of-town conference. (R ). Rabbi Goodman fails to seek review from the general membership of the synagogue Under the by-laws of the Temple, the general membership of the Temple has ultimate authority over all aspects of the Temple, and can override any decision of 9

16 the Board or executive committee. (R , 500). The board s decision to not renew Rabbi Goodman s contract was made in late March. Rabbi Goodman remained at the Temple through June. (TB 69). The Temple s annual general membership meeting was held during this time, in April or May. (TB 129, 114). At no time during his last three months at the Temple did Rabbi Goodman seek to convene a meeting of the full congregation in order to discuss his employment by the synagogue. (TB 69; R. 917, 920). Rabbi Goodman admitted that he never sought review by the full membership of the board s decision not to rehire him. (TB 55). The president of the Temple testified that if the Rabbi had requested that the full membership consider his contract, the request would have been granted. Indeed, the issue could have been considered at the Temple s annual general membership meeting that Spring. (TB 130). Rabbi Goodman sues his former Temple Rabbi Goodman subsequently filed a civil suit against the Temple and board member Richard Ashenoff. (R. 2-25). The Rabbi s complaint had six separate counts. (R. 2-25). He sued the Temple for breach of the 1991 contract, claiming that he was owed money for salary, housing, and reimbursement for expenses incurred in attending the conference in Chicago. (R. 8). He sued the Temple for breach of the Second 10

17 Contract, which was to run from 1994 to 1997, with an option for two more years. (R. 9-10). Rabbi Goodman also sued the Temple for wrongful termination, based on his assertion that his termination was in violation of the Temple s by-laws. (R. 87). In particular, Rabbi Goodman claimed that the Temple violated its by-laws by not inviting or allowing the Rabbi to make a presentation on his own behalf before the executive committee, by the one-day telephone notice of the meeting of the board of directors, by calling the meeting of the board of directors on short notice, and by the executive committee s failure to obtain the ratification by the entire board of directors with regard to its decision to terminate Rabbi Goodman. 1 (R ). On his wrongful termination claim, Rabbi Goodman asked alternatively for damages or for reinstatement to his position at the Temple. (R. 90). Rabbi Goodman also sued the Temple for defamation, based on statements made by board members that he had violated confidences and committed a crime amounting to aggravated battery, and on the statements in the president s letter referring to continued inappropriate conduct and a pattern of previous concern. (R ). Rabbi Goodman also sued Mr. Ashenoff for defamation, based on comments at the 1 This last allegation is contradicted by other portions of the complaint, which allege that the decision to terminate Rabbi Goodman s employment was approved by the board of directors. (R. 81). In any event, the evidence is undisputed that the nonrenewal decision was approved by the board. (R. 854). 11

18 meeting of the board of directors. The claim against Mr. Ashenoff asserted on information and belief also relied on similar comments (and statements concerning violations of confidences) allegedly made during phone calls to members of the Temple. (R ). 2 Finally, Rabbi Goodman brought a claim against Mr. Ashenoff for tortious interference with the Rabbi s advantageous business relationship with the Temple. (R. 95). Defendants raise religious freedom defense The Defendants moved to dismiss on the basis that the United States and Florida Constitutions bar the civil courts from exercising jurisdiction over the case. The trial court denied the motion, and the Defendants filed a petition for writ of prohibition in the Third District Court of Appeal. The DCA returned the case to the trial court for further factual development. Temple Shir Ami v. Esquiroz, 672 So. 2d 550 (Fla. 3d DCA 1996). Discovery after remand After remand from the appellate court, the parties conducted discovery. Rabbi Goodman requested a copy of the minutes or any tape recordings of the meetings of the 2 Nothing in discovery established that the statements made by Mr. Ashenoff which Rabbi Goodman disputes were made outside of the two board meetings. 12

19 executive committee or the board of directors. (R. 293). The Defendants moved for a protective order, noting that the discovery could itself cause the court to become excessively entangled in constitutionally-protected areas. (R. 303, ). The trial court limited discovery to the jurisdictional issue. The court also protected statements made during the executive committee and board meetings, but not statements made outside of those meetings. The court s order stated: Discovery may proceed on the constitutional jurisdictional issue. Discovery on issues other than the constitutional jurisdictional issue is stayed until after the Court determines the jurisdictional issue. Statements concerning the choice of a rabbi made at board meetings of the synagogue are not discoverable. To the extent the parties seek further guidance on the scope of discovery, the matters should be brought in the first instance to the General Master. (R ). Based on this order, in depositions the Temple s witnesses testified generally about the events at the meetings, but did not identify particular statements made by particular persons at the meetings. (Passim). However, the Rabbi s witnesses were able to testify without limitation. (Passim). The evidentiary hearing At an evidentiary hearing, the trial court heard the testimony of the former president of the Temple, Rabbi Goodman, and one of the Rabbi s supporters who was present at the board meeting. The parties also relied on the depositions previously taken in the case. 13

20 The Defendants presented the testimony of the former president of the Temple. The Defendants asked him for general terms, not the specifics, of whether the discussion at the executive board meeting concerned religious issues. (TA 52). Rabbi Goodman s counsel objected, and asked for specifics: I can t impeach a witness who s going to give his own opinion on what is a rabbinical issue and then tell us without telling us specifically if it was religious or not. (TA 52). The judge agreed with Rabbi Goodman: Why don t you ask him factual questions. (TA 52-53). The Temple again tried to ask in general terms, and again the Rabbi s lawyer objected: How can I impeach a witness on inappropriate rabbinical behavior at events? (TA 53). He later reiterated his objection: I object to a witness testifying about giving his opinion as to what is rabbinical and what isn t unless he s going to be specific about these issues. (TA 54). The trial court agreed: I think he s right, that I should not allow him to testify as to a conclusion that something is rabbinical or not without giving the Court and Counsel an opportunity to determine what that is. (TA 55). Later, in cross-examining the former Temple president, the issue came up again when the Rabbi s attorney asked the president to name specific persons whose confidences the Rabbi breached. The Defendants objected. During argument, the trial judge point blank asked whether the Rabbi wanted the president s testimony stricken, 14

21 and the Rabbi declined the offer. The court asked, You want that testimony stricken? Counsel for the Rabbi responded, No, Your Honor. (TA 85). The Court later said, [Y]ou now want to get into specifics.... [Y]ou are probably entitled to get into specifics. (TA 85-86). The trial court and district court of appeal both find that the Rabbi s claims are not within the jurisdiction of the civil courts After hearing evidence at two separate evidentiary hearings, and argument at a third hearing, the trial court concluded that all of the Rabbi s claims were constitutionally barred. (R ). The Third District Court of Appeal for the most part affirmed the trial court: We conclude that the trial court correctly dismissed the claims.... In order for the trial court to have resolved these disputes, it would have had to immerse itself in religious doctrines and concepts and determine whether the religious disagreements were a valid basis for the termination of Rabbi Goodman s services. The allegedly defamatory report and tortious interference occurred as part of this religious dispute and would require the trial court to weigh their effect on the board members as compared to the effects of the other considerations which clearly are religious disagreements. Inquiring into the adequacy of the religious reasoning behind the dismissal of a spiritual leader is not a proper task for a civil court. See, e.g., Young v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184 (7th Cir.), cert. denied, 513 U.S. 929, 115 S. Ct. 320, 130 L.Ed.2d 281 (1994). Goodman v. Temple Shir Ami, 712 So. 2d 775, 777 (Fla. 3d DCA 1998). However, the district court concluded that the civil courts could consider the Rabbi s claim for breach of his first contract. The court held that this claim does not create excessive entanglements with religious beliefs, and thus does not preclude 15

22 civil court intervention. Id. 16

23 SUMMARY OF THE ARGUMENT The trial court and district court properly concluded that this dispute cannot be decided by the civil courts. The civil courts refuse to decide cases which at their essence involve religious disputes. Any dispute which involves a religious institution s selection of its spiritual leader is a religious dispute. Accordingly, such disputes may not be resolved by the civil courts. The evidence demonstrates that in this case consideration of Rabbi Goodman s claims would require the consideration of religious issues, such as whether he was a good rabbi, whether prayer shawls should have been available, and how holidays should be observed. The various arguments offered by Rabbi Goodman that the Temple is congregational rather than hierarchical, that some of his claims are against a board member rather than the Temple itself, and that the claims brought by the Rabbi are nonreligious have been made in other cases, and almost always rejected. They should be rejected here as well. Further, this case presents a particularly weak argument for civil court jurisdiction, since the Rabbi did not exhaust the review available within the Temple. The trial court did not abuse its discretion in limiting discovery. The court properly limited discovery to the jurisdictional issue, and balanced the interests by generally allowing discovery, with the exception of particular statements made during the Temple s board meetings. In any event, any error was harmless, since Rabbi Goodman had ample opportunity 17

24 at the hearing to question witnesses without restriction. Also, Rabbi Goodman waived the point by declining the trial court s offer to strike the testimony. On the cross-petition, the district court erred in holding that the courts could exercise jurisdiction over Rabbi Goodman s claim for breach of the first contract, as that claim involves constitutionally-protected areas. ARGUMENT I. The courts lack jurisdiction to decide this lawsuit between a synagogue and its rabbi Rabbi Goodman s dispute arising from his employment relationship with his former synagogue is a matter beyond the jurisdiction of the courts. Dismissal is compelled by the First Amendment to the United States Constitution and Article 1, Section 3, of the Florida Constitution. A. Constitutional limitations on the jurisdiction of courts to decide matters involving churches and synagogues One of the great accomplishments of American democracy is the extent to which it provides rules for a society in which religion and government can flourish, independent of each other and yet respectful of each other. This has been accomplished through a degree of separation between church and state. This separation is based upon the recognition that a 18

25 union of government and religion tends to destroy government and to degrade religion. Engel v. Vitale, 370 U.S. 421, 431 (1962). Over the years, courts have found that a distance between government and religion is particularly important when a religious institution has a dispute with another entity or person. The danger inherent when civil courts resolve disputes involving religious institutions is present in every such case. However, where the danger of intrusion into religious matters is slight, courts will exercise jurisdiction. For example, if a church enters into a contract for the rental of office equipment, a dispute arising from that contract would almost certainly not touch upon religious issues, and therefore the courts would likely exercise jurisdiction over the dispute. This case does not involve the rental of office equipment, or a property dispute, or an employment dispute involving a lay person, or any of the other disputes which may be viewed as non-ecclesiastical. Rather, this case concerns a synagogue s choice of who will be its rabbi, of who should in the words of Rabbi Goodman s employment contract promote the aims and goals of the Temple. (R ). Courts have repeatedly and consistently held that this is precisely the sort of dispute which a civil court may not resolve. B. The decision of who will speak for a synagogue as its rabbi goes to the heart of constitutionally-protected religious activity, and may not be second-guessed by the courts Courts have emphasized that matters concerning a religious institution s decision to hire or terminate clergy are especially inappropriate for civil review. As one federal of court of appeal stated, Personnel decisions by church-affiliated institutions affecting clergy are per se religious matters and cannot be reviewed by civil courts. Scharon v. St. Luke s Episcopal Presbyterian Hospital, 929 F.2d 360, 363 (8th Cir. 1991). [C]ourts will not attempt to right wrongs related to the hiring, firing, discipline or administration of clergy. 19

26 Tran v. Fiorenza, 934 S.W.2d 740, 743 (Tex. Ct. App. 1996). Although such wrongs may exist and be severe, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle that it overshadows the inequities which may result from its liberal application. Id. The host of cases rely on the sound proposition that to interfere with a religious employer s choices regarding who may propagate the faith or who may train others to do so is to entangle the judiciary impermissibly in matters of polity. Welter v. Seton Hall University, 608 A.2d 206, 214 (N.J. 1992). The cases acknowledge that an employment dispute between a church and its spiritual leader inescapably involves spiritual issues: civil court review of ecclesiastical decisions of church tribunals, particularly those pertaining to the hiring or firing of clergy, are in themselves an extensive inquiry into religious law and practice, and hence forbidden by the First Amendment. Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994) (emphasis in original). A court s second guessing of a religious institution s choice of a spiritual leader does direct harm to religious freedom for the obvious reason that the second guessing interferes with the decisions of the religious institution. But the damage to First Amendment freedoms does not stop there. An additional harm, which goes far beyond the religious institution involved in the first case, is the chilling effect such judicial scrutiny has on other churches and synagogues. See Yaggie v. Indiana-Kentucky Synod Evangelical Lutheran Church in America, 860 F. Supp. 1194, 1199 (W.D. Ky. 1994), aff d, 64 F.3d 664 (6th Cir. 1995). Furthermore, the civil courts lack the institutional competence to decide these types of disputes. The review of employment decisions by religious institutions would require the courts to determine the meaning of religious doctrine and canonical law. Scharon v. St. Luke s Episcopal Presbyterian Hospitals, 929 F.2d at 363. But the rule of law, which governs civil courts, serves a different master than the rule of God. Civil courts are limited in their inquiry only by the law, by logic, and by experience. Religious institutions, on the 20

27 other hand, often make decisions on grounds not susceptible to the logic of the law. In his initial brief, Rabbi Goodman suggests that courts across the nation are divided on whether the Constitution bars the exercise of civil court jurisdiction over a claim such as Rabbi Goodman s. We submit that this is simply not true. Almost without exception, the courts have held that clergy employment decisions are beyond the review of the courts. Rabbi Goodman relies on a few cases, but most of them are inapposite, and the few which truly favor his position are anomalies, decided but then quickly ignored. Some of the many recent cases holding that there was no jurisdiction over such disputes are listed in the appendix to this brief. C. Consideration of Rabbi Goodman s lawsuit would inexorably result in a violation of the First Amendment The general rule, supported by near unanimous authority, is that civil courts may not adjudicate disputes between a religious institution and its spiritual leader. On this basis alone, the Court should conclude that there is no jurisdiction over Rabbi Goodman s claims. But the specifics of the Rabbi s claims further demonstrate that the civil courts should not adjudicate this case. Though skillfully pled, Rabbi Goodman s complaint nevertheless points unmistakably to religious matters protected by the First Amendment. A court would have to look at Rabbi Goodman s conduct and character, and then determine in light of his role of serving all necessary pastoral and community needs and promoting the aims and goals of the Temple (R. 14) whether the Temple properly decided against renewing his contract. A court would have to consider the serious concerns over the Rabbi s performance which led the executive committee to recommend in 1993 that the option year on his contract not be renewed, as well as the concerns which led the executive committee in 1994 to decide not to proceed with a renewal contract. A court would of necessity have to delve into the specific matters discussed at the meetings, and consider whether the Temple s concerns were valid. Was the discussion in good faith? Was it consistent with the values of Judaism? What is the appropriate conduct for a rabbi? What is a valid concern 21

28 over a rabbi s conduct? The court will have to review the matters discussed at the board meeting. Should a talis (prayer shawl) have been available? If the yahrtzeit (memorial) candles were not lit, should the Rabbi himself have lit them? Should potato latkes (pancakes) be served after the Chanukah service? Should new high holiday prayer books have been ordered? Should religious holidays be celebrated on the actual day on which they fall on the Hebrew calendar, or should the celebrations be held on Friday nights, which are more convenient this being an issue which Rabbi Goodman himself admitted is a matter of rabbinical performance. (TB 60). At the hearing in the trial court, Rabbi Goodman presented the testimony of one of his supporters at the board meeting. She conceded that the Temple s decision was based on Rabbi Goodman s performance as a rabbi: (TB 124). Q. When you put all of the little straws together at a board of directors meeting, wasn t the decision about Rabbi Goodman made that he failed in his rabbinical performance, whether you agree or not? A. Yes. Rabbi Goodman s tort claims will require consideration of the same issue of why the Temple chose to not renew the Rabbi s contract. On the defamation claim, a court would have to determine whether the purported statements were true. For example, was it said (as the Rabbi claims) that the Rabbi had violated confidences? What were those confidences? Was there good reason for him to violate the confidences? See Smith v. Calvary Christian Church, 1998 Mich. App. Lexis 332 (Mich. Ct. App. Dec. 4, 1998) (church member s claim that pastor breached confidences is barred by First Amendment). A court would have to determine whether there was there a pattern of previous concern about the Rabbi, as the Temple s president wrote to members. Was this statement sincere? Were the concerns valid? Did the concerns relate to doctrinal issues? When board member Richard Ashenoff expressed his concerns 22

29 about the Rabbi s performance, was he acting in good faith and therefore protected by a privilege? Did Mr. Ashenoff have a doctrinal duty to report any information to the Temple, regardless of its reliability? Inquiry into these matters would necessarily invade the First Amendment rights of the Temple and Mr. Ashenoff. The extent of the inquiry into religious affairs which would be necessary to decide this case can perhaps be best seen from the fact that Rabbi Goodman, in his claim for wrongful termination, requested that the Court enter judgment in his favor and against Defendant Temple Shir Ami, Inc., reinstating him with back-pay or alternatively awarding him compensatory damages.... (R. 90). In his brief in this Court, Rabbi Goodman repeatedly disclaims any desire for reinstatement, but sometimes slips and makes arguments which would logically lead to his reinstatement. For example, he claims that Temple Shir Ami s termination of Rabbi Goodman is ineffectual because it was not accomplished in accordance with Temple Shir Ami s bylaws. (Initial brief, at 24, emphasis added). He also asserts that civil courts have jurisdiction to compel religious organizations adherence to their own by-laws.... (Initial brief, at 23). In these passages, Rabbi Goodman shows his cards. At the heart of Rabbi Goodman s claims is the question of who should be the spiritual leader of the Temple. The Temple decided it should not be Rabbi Goodman. The civil courts must defer to that decision. D. Rabbi Goodman s attempts to avoid the constitutional prohibition were properly rejected by the circuit court and district court of appeal In light of the overwhelming precedent against him, Rabbi Goodman attempts to push some of his claims through the courthouse door by making a number of arguments that this case is not controlled by the general principles stated previously and almost universally followed. Courts have heard these arguments before and rejected them, and they should be rejected here. 1. Courts refuse to allow clergy to sneak part of their claim into court 23

30 Rabbi Goodman focuses on limited parts of the series of events described in his complaint, and then suggests that only a limited matter is before the court. But courts have been hesitant to engage in this sort of analysis. If as the case law convincingly demonstrates courts do not resolve disputes concerning a religious institution s discharge of its spiritual leader, then courts should not resolve claims based on portions of the events leading up to the discharge. Piecemeal adjudication of constitutionally-protected matters still violates the Constitution. Confronted with discharged clergy who bring numerous legal claims against their former religious institution, courts generally look to the heart of the dispute to determine what the case concerns. If the dispute is about the discharge of clergy, the courts will not hear the case. For example, in Higgins v. Maher, 258 Cal. Rptr. 757 (Ct. App. 1989), the court, after refusing to consider the clergyman s claims which directly disputed his termination, then turned to the tort claims for defamation, invasion of privacy, and intentional infliction of emotional distress, and held that these claims were also outside the authority of the civil courts. When we know that torts such as those of which Higgins complains occurred as inseparable parts of a process of divestiture of priestly authority, we are most reluctant to sever them from the privileged aura of what might be called ecclesiastical exemption. 258 Cal. Rptr. at 761 (emphasis in original). The Higgins court noted if an exception to the general rule of non-justiciability were made for the tort claims, that exception would soon swallow up the general rule. The making of accusations of misconduct... will often, if not usually, attend the difficult process by which priestly faculties are terminated. If our civil courts enter upon disputes between bishops and priests because of allegations of defamation, mental distress and invasion of privacy, it is difficult to conceive the termination case which could not result in a sustainable lawsuit. 258 Cal. Rptr. at 761. See Dobrota v. Free Serbian Orthodox Church, 1998 Ariz. App. Lexis 15 (Ariz. Ct. App. Jan. 29, 1998) (church s actions the cutting off of the priest s utilities and 24

31 the taking of his belongings were inseparable parts of the process of divesting [the priest] of his priestly authority, and thus immune from civil court review); Tidman v. The Salvation Army, 1998 Tenn. App. Lexis 475 (Tenn. Ct. App. July 15, 1998) (claims barred where all of the allegations of wrongdoing involved conduct that occurred in the course of an investigation concerning plaintiff s fitness). All of the events about which Rabbi Goodman complains were part of the Temple s selection of its Rabbi, and thus beyond the jurisdiction of the civil courts. Focus on claims against Richard Ashenoff. Rabbi Goodman focuses on the statements which Richard Ashenoff allegedly made during the meeting of the board of directors, in an attempt to convince the Court to allow his claim against one member of the Temple s board to go forward. But the religious freedom/free exercise rights guaranteed to religious institutions are meaningful only if they also protect the individuals within the institutions. A religious institution can make a decision about its spiritual leader only based upon the views of its members. In recognition of this, the cases in which courts refuse to extend jurisdiction over clergy employment disputes draw no distinction between the institution and the individuals. Wisdom mandates that we refrain from dictating to a congregation that if they are unhappy with their religious leader they cannot freely speak their mind. Yaggie v. Indiana-Kentucky Synod Evangelical Lutheran Church in America, 860 F. Supp. 1194, 1199 (W.D. Ky.1994), aff d, 64 F.3d 664 (6th Cir. 1995). Focus on tort claims. Rabbi Goodman focuses on the defamation claim, but the prohibition against courts deciding clergy employment disputes applies regardless of the legal theory which the plaintiff asserts, where the alleged defamatory statements arose out of the process leading to the decision to terminate clergy. See Higgins v. Maher, 258 Cal. Rptr. 757, 761 (Ct. App. 1989); McDonnell v. Episcopal Diocese of Georgia, 381 S.E.2d 126, 128 (Ga. Ct. App. 1989). An illustrative case is Downs v. Roman Catholic Archbishop of Baltimore, 683 A.2d 808 (Md. Ct. App. 1996), where a former candidate for the priesthood sued archbishops, priests, and the church, claiming 25

32 that one of the priests had defamed him. When the defendants argued that the case was barred by the First Amendment, the plaintiff like Rabbi Goodman here responded that the case was simply one of defamation and did not involve the internal ecclesiastical policies of the Church. The court nevertheless dismissed the claims. The court noted that the lower federal courts had dealt specifically with actions for defamation directed at churches and church officials, and in most instances, as in this one, the alleged defamatory or other tortious conduct has been intertwined with decisions regarding the plaintiff s fitness or suitability to act as a clergyman. The court explained that Questions of truth, falsity, malice, and the various privileges that exist often take on a different hue when examined in the light of religious precepts and procedures that generally permeate controversies over who is fit to represent and speak for the church. See also Tran v. Fiorenza, 934 S.W.2d 740, 744 (Tex. Ct. App. 1996); Olson v. Luther Memorial Church, 1996 Minn. App. Lexis 213 (Minn. Ct. App. Feb. 20, 1996); Yaggie v. Indiana-Kentucky Synod, 64 F.3d 664 (6th Cir. 1995) (unpublished decision, available on Westlaw, 1995 WL );-Kentucky Synod, 64 F.3d 664Jeambey v. Synod of Lakes and Prairies, 1995 WL (Minn. Ct. App. Oct. 24, 1995); Farley v. Wisconsin Evangelical Lutheran Synod, 821 F. Supp (D. Minn. 1993). Rabbi Goodman also asserts a claim against Mr. Ashenoff for tortious interference with the Rabbi s contract with Temple Shir Ami. A court has specifically held that such a claim is barred by the First Amendment: To analyze the justification element of this claim, the court would have to consider whether the bishop and his assistants acted reasonably. Singleton v. Christ the Servant Evangelical Lutheran Church, 541 N.W.2d 606, 614 (Minn. Ct. App. 1996). Similarly, the court in Olson v. Luther Memorial Church, 1996 Minn. App. Lexis 213 (Minn. Ct. App. Feb. 20, 1996), found that a claim for tortious interference with 26

33 contract would require a searching inquiry into the church s motives, and thus was barred by the First Amendment. 2. Prohibition applies even if plaintiff asserts that claim does not involve religious doctrine Rabbi Goodman argues that the courts can exercise jurisdiction over his lawsuit because no religious reason has been stated for the decision against renewing his contract. This argument is wrong both factually and legally. Rabbi Goodman s assertion that religious considerations were not part of the Temple s decision is factually incorrect. His own witness testified that the Board of Directors discussed matters such as religious attire (talis, or prayer shawl), the conduct of a rabbi during religious services (whether a rabbi should light the yahrtzeit candles), and when religious holidays should be celebrated. (TB 95, 104, 106; R. 978). But more significantly, Rabbi Goodman s argument that the courts should hear his dispute because the Temple has not stated a religious reason for his non-renewal is in violation of core constitutional values. Simply stated, Temple Shir Ami should not have to tell a civil court why it did not want to have Rabbi Goodman as its spiritual leader. In similar cases, courts refuse to exercise jurisdiction even if the religious institution does not assert any religious basis for the employment decision. The focus under the ministerial exception is on the action taken, not possible motives. EEOC v. The Catholic University, 83 F.3d 455, 465 (D.C. Cir. 1996). But Rabbi Goodman goes further. According to Rabbi Goodman, once Temple Shir Ami states a religious reason for its decision against retaining him, it would be entirely proper for the finder of fact to decide (i) whether the ecclesiastical issues raised by Temple Shir Ami were the real reason for its decision, [and] (ii) whether the religious premise for the action in fact exists.... (Initial brief, at 28-29, citations omitted). Rabbi Goodman seeks a forum to prove in his words that Temple Shir Ami s snap decision 27

34 to repudiate the Second Contract had no religious basis but was instead the result of a lie made up by a group who had failed to oust him in the past. (Initial brief, at 33). We submit that the civil courts have no business determining whether Temple Shir Ami s asserted reasons for not retaining its spiritual leader were sincere or true. If the constitutional guarantee of religious freedom means anything, it must preclude the government from evaluating the sincerity of the religious beliefs of Americans. Finally, the prohibition on civil court jurisdiction would apply even if there had been no overtly religious basis for Temple Shir Ami s decision. The danger of intrusion into constitutionally-protected areas persists even in cases in which the alleged breach of the employment contract resulted from entirely nondoctrinal considerations, because when the employee fulfills a ministerial function for the employer, intrusion into the employment relationship directly affects the religion s formal doctrine. Welter v. Seton Hall University, 608 A.2d 206, 214 (N.J. 1992). See also Kaufmann v. Sheehan, 707 F.2d 355, 358 (8th Cir. 1983). The interaction between a church and its pastor is not only an integral part of church government, but also all matters touching this relationship are of ecclesiastical concern. It makes no difference when the ecclesiastical dispute fails to touch on church or religious doctrine. Yaggie v. Indiana-Kentucky Synod, 64 F.3d 664-Kentucky Synod, 64 F.3d 664Lewis v. Seventh Day Adventist Lake Region Conference, 978 F.2d 940 (6th Cir. 1992) [R]eligious bodies may make apparently arbitrary decisions affecting the employment status of their clergy members and be free from civil review having done so. Young v. Northern Illinois Conference of United Methodist Church, 21 F.3d 184, 187 (7th Cir. 1994). See Natal v. Christian and Missionary Alliance, 878 F.2d 1575, 1577 (1st Cir. 1989); Higgins v. Maher, 258 Cal. Rptr. 757 (Ct. App. 1989). There is no arbitrariness exception to the general rule against civil court review of decisions of religious bodies. Serbian Eastern 28