The United States Supreme Court issued three rulings today. In one of the more highly anticipated opinions, the justices unanimously agreed in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the First Amendment’s freedom of religion provisions encompass a “ministerial exception” to some anti-discrimination employment laws. Hosanna-Tabor involved a fourth grade teacher diagnosed with narcolepsy but cleared to work. Instead of returning the teacher to the classroom, the Lutheran school that employed her severed her employment. The teacher filed a claim with the EEOC under the Americans with Disabilities Act. The church school maintained that it could not be sued under federal employment laws because the religion clauses of the First Amendment to the U.S. Constitution shielded it from liability. The teacher argued her job was primarily secular in nature, as evidenced by the fact she was engaged in religious instruction only 45 minutes of the school day.
Chief Justice Roberts, who wrote the Court’s majority opinion, said the amount of time devoted to religious activities may be a consideration, but that the answer is not controlled by a stopwatch. Facts of significance to the outcome in Hosanna-Tabor were that the teacher had extensive religious training, had been formally commissioned, and was held out by the church as a minister. Thus, the “ministerial exception” is not necessarily limited to those at the head of a church or congregation. “We cannot accept the remarkable view that the [First Amendment's] Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers,” wrote the Chief Justice.
The opinion does not speak to all kinds of lawsuits, such as those involving claims for personal injuries, breach of contract, payment of wages, to name a few.
Justice Alito wrote a separate opinion and was joined by Justice Kagan. They emphasized the ministerial exception does not depend on the word “minister,” a concept that does not exist in some religions. Rather, the concurring justices said:
The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religiousceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential tothe performance of these functions.
The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.
The lesson to be learned from today’s opinion from Florida’s Fifth District Court of Appeal is simple: Do what the Court orders you to do.
In Carden & Associates, Inc. v. C.O.D. Trees Partnership, No. 5D11-2960 (Fla. 5th DCA Jan. 6, 2012), the Court applied a straightforward interpretation of Florida Rule of Appellate Procedure 9.720(a), which “provides that, unless changed by order of the court, a party is deemed to appear at a mediation conference if certain persons are physically present, including ‘the party or its representative,’ the party’s ‘counsel of record,’ and ‘a representative of the insurance carrier for an insured party.’” Neither of the appellants (the appealing parties) attended; instead, only their insurance company representative and attorney appeared. And no motion was filed requesting to excuse the parties’ personal appearance.
The Court said, “The law is clear that, absent being excused by the court, the party must appear at mediation and a representative of the insurance company cannot take the party’s place.” Accordingly, the Court awarded sanctions and required the parties to pay (1) all fees charged by the mediator in connection with this appellate mediation; and, (2) C.O.D.’s reasonable costs and attorneys’ fees incurred in preparing for and attending the appellate mediation and filing the instant motion for sanctions – all within 30 days.
Note to attorneys: This case is a good example of the danger inherent in considering the person with the purse your client rather than the person actually named in the lawsuit. Excusing or failing to require the client’s attendance at mediation may put you on the hook for the sanctions via a malpractice claim.
Over the course of the past two decades, a good deal of wailing and gnashing of teeth has occurred in Florida over disputes concerning the boundaries of the Economic Loss Rule a/k/a the Economic Loss Doctrine. Beginning in the late 1990′s, the Florida Supreme Court began rolling the rule back to its principled origins. In 2004, the Florida Supreme Court issued a decision that, I believe, was intended to eliminate application of the rule in most, if not all, common law tort actions. Not all Florida courts of appeal share my interpretation of that case, however. And, after all, they are the judges, not me.
On the other hand, the Supreme Court of Kansas, in its first pronouncement on the subject, unanimously rejected application of the Economic Loss Doctrine to common law tort actions. The case David v. Hett, No. 98,419 (Kan. December 30, 2011). The victory is significant well beyond the Davids and Mr. Hett, but it may be a shallow victory for the Davids given that most of their claims were dismissed after they failed to dispute certain facts in the time required by procedural rules. The Court noted that the failure to timely file the required statements constituted admissions that “effectively devastated many of the Davids’ claims. As the Court of Appeals observed, ‘Persons who fail to comply with Supreme Court Rule 141 do so at their peril.’”
United States Supreme Court associate justices Stephen Breyer and Antonin Scalia, who often occupy opposite ends of the spectrum in terms of judicial philosophy, appeared yesterday to testify before the Judiciary Committee of the United States Senate. The subjects on which they testified were wide ranging, and their answers were spontaneous. A webcast of the hearing may be accessed via the website of the United States Senate’s Committee on the Judiciary. In terms of the nine justices’ diverging views on the Constitution, Justice Breyer testified, “This is a very big country. We have 309 million people, 308 million of whom, to everyone’s surprise, are not lawyers.” “And they have many different views. And it’s a good thing, not a bad thing, that people’s outlook on that court is not always the same.” Justice Scalia similarly spoke in favor of conflicting views: “Learn to love the separation of powers, which means learning to love the gridlock, which the framers believed would be the main protection of minorities.” “Americans should appreciate that, and they should learn to love the gridlock. It’s there for a reason.”
