IN THE SUPREME COURT OF
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No. 05-0916
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Pleasant Glade Assembly of God, Reverend Lloyd A. McCutchen,
Rod Linzay, Holly Linzay, Sandra Smith,
Becky Bickel, and Paul Patterson, Petitioners,
v.
Laura Schubert, Respondent
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On Petition for Review from the
Court of Appeals for the Second District of
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Argued April 12, 2007
Chief Justice Jefferson, joined by Justice Green, and by Justice Johnson as to Parts II-A, III, and IV, dissenting.
After today, a tortfeasor need
merely allege a religious motive to deprive a
I
Ironically, much of my analysis
mirrors that found in Pleasant Glade’s earlier plea to the court of appeals. See,
e.g., infra note 9. In its successful petition for a writ of mandamus,
Pleasant Glade conceded that Schubert’s claim for assault, battery, and false
imprisonment presented a “‘secular controversy’ and does not come within the
protection of the First Amendment. That is, no church or pastor can use the
First Amendment as an excuse to cause bodily injury to any person.” In the
subsequent appeal, the court of appeals held that Pleasant Glade, having
received mandamus relief to exclude religious references at trial, was
precluded from raising a First Amendment defense that it had quite purposefully
abandoned. 174 S.W.3d 388, 407. The Court holds that
it is not. In light of the Court’s ultimate dismissal for want of jurisdiction,
however, I find the Court’s protracted discussion of judicial estoppel
puzzling. Subject-matter jurisdiction cannot be conferred by estoppel, Van Indep. Sch. Dist. v. McCarty,
165 S.W.3d 351, 354 (
The Court states that Pleasant Glade is not judicially estopped from making its First Amendment arguments because, among other reasons, “the asserted inconsistency did not arise in a prior proceeding, but in this same case,” __ S.W.3d __, __, and “[c]ontradictory positions taken in the same proceeding . . . do not invoke the doctrine of judicial estoppel,” id. at __. That characterization misses the mark. The United States Supreme Court recently discussed the policy considerations underlying judicial estoppel and the rationale behind the requirement that parties succeed in a prior proceeding:
[C]ourts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled. Absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations, and thus poses little threat to judicial integrity.
New Hampshire
v. Maine, 532
Although I agree, for the reasons
discussed below, see infra n. 12, that Pleasant Glade is not estopped
under these facts, the Court arrives at the estoppel
question improvidently and reaches a conclusion that will limit
II
A
The
rights contained in the Free Exercise and Establishment Clauses are among our
most cherished constitutional freedoms. As broad as these protections are, I
agree with the Court that “‘under the cloak of religion, persons may [not],
with impunity,’ commit intentional torts upon their religious adherents.” __
S.W.3d at __ (quoting Cantwell v. Connecticut, 310
Three days later, a male church member approached Schubert after a service and put his arm around her shoulders. At this point, Schubert was still trying to figure out “what had happened” at the previous incident, “wasn’t interested in being touched,” and resisted him. As Schubert testified, “I tried to scoot away from him. He scooted closer. He was more persistent. Finally, his grasp on me just got hard . . . before I knew it, I was being grabbed again.” Eight members of Pleasant Glade then proceeded to hold the crying, screaming, seventeen year-old Schubert spread-eagle on the floor as she thrashed, attempting to break free. After this attack, Schubert was unable to stand without assistance and has no recollection of events immediately afterward. On both occasions, Schubert was scared and in pain, feeling that she could not breathe and that “somebody was going to break [her] leg,” not knowing “what was going to happen next.”
The jury found that petitioners assaulted and falsely imprisoned Schubert, and the trial court rendered judgment for her on the false imprisonment claim. Although this case presents an unusual set of facts, involving physical restraint not proven to be part of any established church practice, at its core the case is about secular, intentional tort claims squarely within our jurisdiction, and I believe the Court errs in dismissing for want thereof. I will address each of the Court’s arguments in turn. First, the Court states that because Schubert’s “proof at trial related solely to her subsequent emotional or psychological injuries,” her “case at trial then was not significantly different from what she would have presented under her claim of intentional infliction of emotional distress . . . [a] type of claim [that] would necessarily require an inquiry into the truth or falsity of religious beliefs that is forbidden by the Constitution.” __ S.W.3d at __ (citations omitted). As an initial matter, this is factually inaccurate. Schubert testified that she suffered physical as well as emotional injuries from the assaults. Furthermore, the jury awarded damages for unsegregated past “physical pain and mental anguish.” Pleasant Glade did not request that the damages be segregated, and so waived any complaint that her physical injuries were not compensable. Tex. R. Civ. P. 274.
More importantly, the Court’s allusion to intentional infliction of emotional distress fails to explain how submitting Schubert’s emotional damages claim would “require an inquiry into the truth or falsity of religious beliefs,” “embroil this Court in an assessment of the propriety of . . . religious beliefs,” or “decid[e] issues of religious doctrine.” __ S.W.3d at __, __, __ (citations omitted). In Tilton v. Marshall, 925 S.W.2d 672, 682 (Tex. 1996), we held that intentional infliction of emotional distress claims based on insincere religious representations and breached promises to read, touch, and pray over tithes and prayer requests were barred by the First Amendment. We explained:
One of the elements that a plaintiff must prove to establish intentional infliction of emotional distress is that the conduct was "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." With regard to religious representations, we conclude that no conscientious fact finder would make such a determination without at least considering the objective truth or falsity of the defendants' beliefs, regardless of what evidentiary exclusions or limiting instructions were attempted. After all, the outrageousness and extremity of a representation is, under almost any circumstance, aggravated by being false or mitigated by being true.
925 S.W.2d at 681. This case is not like Tilton. False imprisonment does not require a showing of outrageous conduct.[3] Evaluating whether Pleasant Glade falsely imprisoned Schubert does not require the factfinder to determine “the objective truth or falsity of the defendants’ belief,” id., and neither does awarding her emotional damages. It is a basic tenet of tort law that emotional damages may be recovered for intentional torts involving physical invasions, such as assault, battery, and false imprisonment. See, e.g., Dillard Dep’t Stores, Inc. v. Silva, 148 S.W.3d 370, 374 (Tex. 2004) (affirming award of mental anguish damages for false imprisonment); Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 630 (Tex. 1967) ("Personal indignity is the essence of an action for battery."); Davidson v. Lee, 139 S.W. 904, 907 (Tex. Civ. App.—Galveston 1911, writ ref’d) (“The rule that damages cannot be recovered for mental suffering unaccompanied by physical injury is not applicable when the wrong complained of is a willful one intended by the wrongdoer to wound the feelings and produce mental anguish and suffering, or from which such result should be reasonably anticipated, as a natural consequence.”); Restatement (Second) of Torts, § 905 cmt. c (1965) (“The principal element of damages in actions for battery, assault or false imprisonment . . . is frequently the disagreeable emotion experienced by the plaintiff.”); W. Page Keeton et al., Prosser and Keeton on Torts § 11 (5th ed. 1984) (“Since the injury [resulting from false imprisonment] is in large part a mental one, the plaintiff is entitled to damages for mental suffering, humiliation, and the like.”); 20 William V. Dorsaneo III, Texas Litigation Guide § 331.06 (2007) (“Mental suffering caused by a false imprisonment, including humiliation, shame, fright, and anguish, is also compensable, regardless of whether any physical harm was inflicted on the plaintiff.”); cf. Boyles v. Kerr, 855 S.W.2d 593, 597–98 (Tex. 1993) (“Our decision [that there is no general duty not to negligently inflict emotional distress] does not affect a claimant’s right to recover mental anguish damages caused by defendant’s breach of some other legal duty . . . . We also are not imposing a requirement that emotional distress manifest itself physically to be compensable.”) (emphasis added) (citations omitted). This is common sense: many experiences—including some sexual assaults and certain forms of torture—are extremely traumatic yet result in no serious physical injury.
Given this, it is not surprising
that the Court cites no case holding that the First Amendment bars claims for
emotional damages arising from assault, battery, false imprisonment, or similar
torts. I can cite a case, heavily relied upon by the Court, for the opposite
proposition: Tilton. There we held that “[t]he Free Exercise Clause
never has immunized clergy or churches from all causes of action alleging tortious conduct,” and cited Meroni
v. Holy Spirit Association for the Unification of World Christianity, 119
A.D.2d 200 (N.Y. App. Div. 1986), with the parenthetical “‘[A] church may be
held liable for intentional tortious conduct on
behalf of its officers or members, even if that conduct is carried out as part
of the Church’s religious practices.’” Tilton, 925
S.W.2d at 677. The Court cites Cantwell v. Connecticut, 310 U.S.at 310, for the proposition that “intangible harms” are
“insufficient to impose civil or criminal liability.” __ S.W.3d at __. The
I agree with the Court that certain claims for emotional damages are barred by the First Amendment—if Schubert were merely complaining of being expelled from the church, she would have no claim in the civil courts. But again, this case, as it was tried, is not about beliefs or “intangible harms”—it is about violent action—specifically, twice pinning a screaming, crying teenage girl to the floor for extended periods of time. That was how it was presented to the jury, which heard almost nothing about religion during the trial due to the trial court’s diligent attempt to circumvent First Amendment problems and to honor the court of appeals’ mandamus ruling that neither side introduce religion as a reason for Laura’s restraint.[5] Indeed, the trial court told the jury at the beginning of the case that “the Court of Appeals, the appellate courts, have instructed us that we don’t get into spiritual matters because it would violate the [E]stablishment [C]lause of the First Amendment of the Constitution,” and later repeated this instruction. That the Court looks to a dictionary for evidence of Pleasant Glade’s beliefs and practices is proof of the trial court’s success in keeping religion out of the courtroom. See __ S.W.3d at __, n. 2. Thus, the Court’s assertion that assessing emotional damages against Pleasant Glade for engaging in these religious practices “would . . . embroil this Court in an assessment of the propriety of those religious beliefs” is belied by the conduct of this very case: Schubert testified that she was “grabbed” after collapsing due to illness; Pleasant Glade contested that version of events without reference to demons, “laying of hands,” or other religious subjects, __ S.W.3d at __; and the jury was able to award damages without considering—or even being informed of—Pleasant Glade’s beliefs.[6]
Further, although the Court chooses
to conduct its own inquiry into the role of “laying hands” in Pleasant Glade’s
religion,[7]
and attempts to limit its holding by stating that “religious practices that
threaten the public’s health, safety, or general welfare cannot be tolerated,”
and thus that there may be some cases in which emotional damages are available
as a consequence of religiously motivated conduct, __ S.W.3d at __, any
religious motivation Pleasant Glade may have had is irrelevant to our
consideration. The tort of false imprisonment is a religiously neutral law of
general applicability, and the First Amendment provides no protection against
it. Employment Div. v. Smith, 494
Laws . . . are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. . . . Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.
To be clear, even if it had been
proven at trial that Pleasant Glade’s religion demanded that Schubert be
restrained, the First Amendment would provide no defense—we simply need not
evaluate the validity of Pleasant Glade’s religious beliefs, or even inquire
into the assailants’ motives, to hold Pleasant Glade liable for its
intentionally tortious conduct.[9] And while the Court suggests that
imposing this liability would have a “chilling effect” on the church’s beliefs,
__ S.W.3d at __, constitutional protection for illegal or tortious
conduct cannot be bootstrapped from the protection of beliefs where it does not
otherwise exist. Further, the Court’s threat to “health,
safety, or general welfare” test for liability for religiously motivated acts
is almost identical to the “substantial threat to public safety, peace or
order” language from Sherbert v. Verner, 374
And even under the Court’s erroneous
standard, it is hard to see why this case would not qualify. The torts of false
imprisonment and assault both have substantially similar criminal analogs, see
Tex. Penal Code §§ 20.02
(“Unlawful Restraint”), 22.01 (“Assault”), and it cannot be seriously argued
from this record that Pleasant Glade’s conduct did not threaten Schubert’s
welfare. It is difficult to determine what would meet the Court’s
standard, not least because the Court offers no analysis beyond its declaration
that “this is not such a case.” Finally, the Court hints that it might have
found liability here if Schubert had been a passerby, but that “religious
practices that might offend the rights or sensibilities of a non-believer
outside the church are entitled to greater latitude when applied to an adherent
within the church.” __ S.W.3d at __. There is a kernel
of truth in this statement, but the Court’s formulation is imprecise and
overbroad. Members of religious groups routinely and impliedly consent to a
variety of faith-based practices. Accordingly, implied consent could, in many
circumstances, extend to physical encounters like baptisms and to other
practices congregants embrace as part of their faith. And perhaps this type of
implied consent could, in some circumstances, extend to being pinned to the
floor for hours at a time despite the member’s explicit, contemporaneous
withdrawal of consent. That question is not before us today, however. Consent
is a question of fact—indeed, lack of consent is an
element of false imprisonment on which we have an affirmative jury finding in
this case. Pleasant Glade did not challenge that finding at the court of
appeals, and does not raise it here. Nevertheless, the Court treats church
membership as an across the board buffer to tort liability.[11] The problems with this approach are
obvious. It is impossible to apply the Court’s standard in the absence of
factual development or determination in the trial court. We are in no position
to decide that the ordeal to which Schubert was subjected was so “expected” and
“accepted by those in the church” as to overcome Schubert’s vehement denial of
consent at the time of the incidents. __ S.W.3d at __.
Further, the scant evidence does not support the Court’s conclusion. Senior
Pastor McCutchen, in his affidavit quoted by the
Court, speaks of “lay[ing] hands” and of church
members “faint[ing] into semi-consciousness, and
sometimes l[ying] down on
the floor of our church.”
B
To
the extent that this case presents any First Amendment problems, I believe they
lie in the fact that Schubert was traumatized not only by the false
imprisonment viewed in isolation, but also by the religious content of that
experience. Thus, because one of Schubert’s experts, Dr. Helge,
testified as to the whole of Schubert’s mental anguish, the jury may have
awarded damages stemming in part from the religious nature of the events in
question. __ S.W.3d at __. This is prohibited by the
First Amendment. Paul, 819 F.2d at 883. As
discussed above, however, the general rule in
The Court solves this dilemma not by extracting the religious from the secular, but by binding them together and then dismissing the case for lack of jurisdiction. I would, instead, treat Pleasant Glade’s First Amendment argument as an affirmative defense that must be raised at trial. See Tex. R. Civ. P. 94; cf. Tilton, 925 S.W.2d at 677 (“[W]hen a plaintiff's suit implicates a defendant’s free exercise rights, the defendant may assert the First Amendment as an affirmative defense to the claims against him.”). A jury could then be instructed to award damages only for the mental anguish the plaintiff would have suffered had the tort been committed by a secular actor in a secular setting. Juries are frequently asked to exclude certain sources of injury—in this case religious sources—when calculating damages, and this procedure would allow plaintiffs’ secular claims to go forward while protecting defendants’ First Amendment rights. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges—General Negligence & Intentional Personal Torts PJC 8.7 (2006) Personal Injury Damages—Exclusionary Instruction for Other Condition (“Do not include any amount for any condition not resulting from the occurrence in question”) (emphasis original), & cmt. (“If it would add clarity in the individual case, an instruction not to consider specific, named . . . conditions would be proper, if requested.”); see also id. at PJC 8.8 Personal Injury Damages—Exclusionary Instruction for Preexisting Condition That Is Aggravated, 8.9 Personal Injury Damages—Exclusionary Instruction for Failure to Mitigate. Further, if the case is tried without reference to religion, making an exclusionary instruction potentially confusing or prejudicial, the trial court could in these situations include a proximate cause question, which includes an element of foreseeability. See id. at PJC 2.4 Proximate Cause (“[T]he act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom.”) (emphasis omitted). Thus, the jury (not being aware of any religious aspect of the case) would find only damages reasonably connected to the secular assault.
Pleasant Glade, however, did not request
any such instruction, and this omission bars relief.[12] See Tex. R. Civ. P. 278 (“Failure to submit a definition or
instruction shall not be deemed a ground for reversal of the judgment unless a substantially
correct definition or instruction has been requested in writing and tendered by
the party complaining of the judgment.”). Further, while the Court points to
Dr. Helge’s testimony as proof that Schubert’s
religious and secular damages are inextricably intertwined, another expert, Dr.
Millie Astin, specifically stated that she could
separate the two. And Schubert testified that while she was being restrained
she was afraid she "was being injured" and that she "might
die"—trauma clearly associated with the act of restraint itself. Although
segregating the religious from the secular may sometimes be difficult, it can
and should be done. See Jones v. Wolf, 443
III
Because
I would not dismiss for lack of jurisdiction, I would address Pleasant Glade’s
argument that the trial court erred in allowing expert testimony on, and
recovery for, Schubert’s diagnosis of posttraumatic stress disorder. However,
because the other evidence of Schubert’s mental anguish, including “angry
outbursts, weight loss, sleeplessness, nightmares, hallucinations,
self-mutilation, fear of abandonment, and agoraphobia,” 174 S.W.3d at 393, is
sufficient to support the jury’s award, I cannot say that the error, if any,
“probably caused the rendition of an improper judgment.” Tex. R. App. P.
61.1(a); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (
IV
Pleasant Glade also contends that the trial court erred in refusing to submit their in loco parentis defense to the jury, and that the First Amendment required a finding of actual malice to support the jury’s award of mental anguish damages. In a cross petition for review, Schubert argues that the court of appeals erred in concluding there was no evidence to support a finding that Laura’s loss of earning capacity was foreseeable and proximately caused by Pleasant Glade’s conduct. I agree with the court of appeals’ conclusions on these issues.
V
The
Court today essentially bars all recovery for mental anguish damages stemming
from allegedly religiously motivated, intentional invasions of bodily integrity
committed against members of a religious group. This overly broad holding not
only conflicts with well-settled legal and constitutional principles, it will
also prove to be dangerous in practice.
I would affirm the court of appeals’ judgment. Because the Court instead dismisses the case for lack of jurisdiction, I respectfully dissent.
____________________________
Wallace B. Jefferson
Chief Justice
OPINION DELIVERED: June 27, 2008
[1]
The fact that “[judicial estoppel] is not strictly speaking estoppel but rather
is a rule of procedure”, __ S.W.3d __, does not affect this analysis. See
Wilmer-Hutchins Indep. Sch.
Dist. v. Sullivan, 51 S.W.3d 293, 294–95 (
[2]
Courts have the option of reversing their previous determination rather than
invoking judicial estoppel, thus holding the party to the second of its
inconsistent arguments rather than the first. See New
Hampshire, 532
[3]
The elements of intentional infliction of emotional distress are: “(1) the
defendant acted intentionally or recklessly; (2) the conduct was extreme and
outrageous; (3) the defendant’s actions caused the plaintiff emotional
distress; and (4) the emotional distress that the plaintiff suffered was
severe.” City of
[4] In contrast, the tort of intentional infliction of emotional distress was developed because it was thought that extreme and outrageous conduct should be actionable despite the lack of a physical invasion or another otherwise tortious act, and is sometimes criticized because it compensates plaintiffs for mental anguish not naturally flowing from such an act, which may be mere speech. See Restatement (Second) of Torts, § 46 cmt. b (1965) (“[E]motional distress may be an element of damages in many cases where other interests have been invaded, and tort liability has arisen apart from the emotional distress. Because of the fear of fictitious or trivial claims, distrust of the proof offered, and the difficulty of setting up any satisfactory boundaries to liability, the law has been slow to afford independent protection to the interest in freedom from emotional distress standing alone. It is only within recent years that the rule stated in this Section has been fully recognized as a separate and distinct basis of tort liability, without the presence of the elements necessary to any other tort, such as assault, battery, false imprisonment, trespass to land, or the like.”) (emphasis added).
[5] In order to reach the conclusion that “the religious practice of ‘laying hands’ and church beliefs about demons are [] closely intertwined with Laura’s tort claim,” the Court quotes testimony on Pleasant Glade’s religious beliefs and practices that the jury did not hear, and references claims made in Schubert’s original, unamended petition, __ S.W.3d at __, which was filed before Pleasant Glade’s successful mandamus petition, In re Pleasant Glade Assembly of God, 991 S.W.2d 85, 87-88 (Tex. App.—Fort Worth 1998, orig. proceeding). Schubert subsequently amended her petition, and the live pleading in this case makes reference to neither “exorcism” nor “the Devil.”
[6] As discussed below, I think it possible that some of Schubert’s emotional damages stemmed from protected religious speech and should not have been awarded. Pleasant Glade failed to preserve error on this point, however, and the Court errs in holding all of Schubert’s damages—some of which certainly resulted from the restraint itself—barred. See infra Part II.B.
[7]
In reaching the conclusion that “the act of ‘laying hands’ is infused in
Pleasant Glade’s religious belief system,” __ S.W. 3d at __, the Court engages
in the unconstitutional conduct it purports to avoid: “deciding issues of
religious doctrine.”
[8]
The Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. §§
2000bb-2000bb-4, purported to overrule Smith by requiring a compelling
state interest to substantially burden a person’s religious practice. See Gonzales v. O Centro Espirita
Beneficente Uniao do
Vegetal, 546
[9] Even Pleasant Glade realizes this fundamental principle of First Amendment law. Its petition for writ of mandamus stated:
[Schubert] alleges that she was physically grasped, taken and held on the floor of the church against her will. This was allegedly done as part of an “exorcism” in an alleged attempt to exorcise a demon from her. However, this religious context is actually irrelevant. Since Laura Schubert alleges she was held on the floor against her will, she brings claims for assault, battery, and false imprisonment. This is a “bodily injury” claim . . . Relators, the church and the pastors, concede that this is a “secular controversy” and does not come within the protection of the First Amendment. That is, no church or pastor can use the First Amendment as an excuse to cause bodily injury to any person . . . .
* * *
If this were the sum total of this dispute, Relators would not be here before this Court . . . No religious beliefs would be implicated. The First Amendment and the free exercise of religion would simply not be an issue.
__ S.W.3d at __. Although the Court somehow concludes from this statement that “Pleasant Glade viewed the Schuberts' claims of emotional damages as religious in nature,” it is plain from the text that the Church made no such distinction. And Pleasant Glade was correct not to do so: no religious beliefs are implicated by awarding Schubert mental anguish damages suffered as a result of her false imprisonment. But cf. infra note 12.
[10]
The Court cites Sands v. Living Word Fellowship, 34 P.3d 955, 958
(Alaska 2001), for the proposition that “religious conduct must not pose ‘some
substantial threat to public safety, peace or order.’” __ S.W.3d at __. This
language is taken from Sherbert by way of Frank
v. State, 604 P.2d 1068, 1070 (
[11]
While the Court cites Smith v. Calvary Christian Church, 614 N.W.2d 590,
593 (
[12] Even under my view of judicial estoppel, Pleasant Glade would not be estopped from arguing that the jury improperly awarded mental anguish damages stemming from the religious implications of the incident, which I interpret to be consistent with the position it took in its mandamus petition.