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Marshall v. Munro (1/29/93), 845 P 2d 424
Notice: This is subject to formal correction
before publication in the Pacific Reporter.
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THE SUPREME COURT OF THE STATE OF ALASKA
REVEREND SAMUEL MARSHALL, )
) Supreme Court File No. S-4548
Appellant, ) Superior Court File No.
) 3AN-90-9572 Civil
REVEREND NEIL MUNRO, ) O P I N I O N
) [No. 3924 - January 29, 1993]
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Joan M. Katz, Judge.
Appearances: Edgar Paul Boyko, Boyko &
Flansburg, P.C., Anchorage, for Appellant.
James M. Powell and Valli L. Goss, Hughes,
Thorsness, Gantz, Powell & Brundin,
Anchorage, for Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Burke, Matthews and Compton,
This case involves claims of defamation, interference
with contract and breach of contract by Reverend Samuel
Marshall against Reverend Neil Munro. The superior
court dismissed the claims on First Amendment grounds.
We affirm in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND1
Marshall is an ordained minister of the United
Presbyterian Church of America. He was employed as the
Interim Pastor of the First Presbyterian Church of
Anchorage for two years, ending in March 1990.
Marshall then travelled to Kentucky and Tennessee to
seek employment with another congregation. He accepted
a position with the Hillwood Presbyterian Church of
Nashville, Tennessee. When Marshall presented himself
to begin his employment, he was notified that because
of derogatory information received from Munro, the
church would not hire him as Pastor.
Munro is the Executive Presbyter of the Presbytery of
Yukon, Synod of Alaska Northwest, Presbyterian Church
(USA). As part of his church duties, Munro is often
requested to respond to inquiries from other
Presbyterian Churches which are considering "calling"a
Marshall's complaint alleges Munro maliciously made
false statements that Marshall was divorced, was
dishonest, was unable to perform pastoral duties due to
throat surgery, and had made an improper advance to a
member of the Anchorage congregation.
Superior Court Judge Joan M. Katz granted Munro's
motion for summary judgment. Judge Katz concluded that
the court was without jurisdiction to determine the
dispute, because the First Amendment proscribes a civil
court from interfering in relationships between the
church and its clergy or various members of the clergy.
Judge Katz granted summary judgment for Munro and
awarded attorney's fees and costs.
II. STANDARD OF REVIEW
The standard of review of the granting of a summary
judgment is de novo. Farmer v. State, 788 P.2d 43, 46
n.8 (Alaska 1990). The court must determine whether
there is a genuine issue of material fact, and whether
the moving party is entitled to judgment on the law
applicable to the established facts. Zeman v.
Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska
1985). "On questions of law, this court is not bound
by the lower court's decision; . . . Our duty is to
adopt the rule of law that is most persuasive in light
of precedent, reason, and policy." Guin v. Ha, 591
P.2d 1281, 1284 n.6 (Alaska 1979).
The First Amendment to the United States Constitution,
made applicable to the states by the Fourteenth
Amendment, guarantees freedom of religion. The First
Amendment provides in part: "Congress shall make no law
respecting an establishment of religion, or prohibiting
the free exercise thereof; . . ." The State of Alaska
also expressly guarantees freedom of religion in
Article 1, section 4 of the Alaska Constitution, which
states: "[n]o law shall be made respecting an
establishment of religion, or prohibiting the free
Based on freedom of religion considerations, the United
States Supreme Court early fashioned principles which
limit the role of civil courts in resolving religious
controversies. In Watson v. Jones, 80 U.S. 679 (13
Wall. 1871), the court was asked to settle a property
dispute turning on the question of whether the church
had changed its doctrine, which would invalidate its
property interest in the local church. The Supreme
Court held: 1) civil judges are incompetent to resolve
questions concerning religious doctrine; 2) members of
a hierarchical church have voluntarily joined the
general church body, thus giving implied consent to its
internal governance; and 3) the structure of our
political system requires a severe limit on involvement
by civil courts in the affairs of religious bodies.
Id. at 729-32; see also Carl H. Esbeck, Tort Claims
Against Churches and Ecclesiastical Officers: The First
Amendment Considerations, 89 W. Va. L. Rev. 1, 16
The decision in Watson relied on federal common law.
Kedroff v. St. Nicholas Cathedral of The Russian
Orthodox Church in North America, 344 U.S. 94 (1952),
was based upon the Constitution. In Kedroff the Court
invalidated a New York statute which had attempted to
remove control of the Russian Orthodox churches from
the central governing hierarchy located in the Soviet
Union. The Supreme Court noted that the decision in
Watson creates the "spirit of freedom for religious
organizations, an independence from secular control or
manipulation, in short, power to decide for themselves,
free from state interference, matters of church
government as well as those of faith and doctrine."
Kedroff, 344 U.S. at 116.
In Serbian Eastern Orthodox Diocese for the United
States of America and Canada v. Milivojevich, 426 U.S.
696 (1976), the Court rejected a bishop's resistance to
the reorganization of his diocese and his removal from
office. The Court held "a civil court must accept the
ecclesiastical decisions of church tribunals as it
finds them." Id. at 713. The Court made a
distinction, stating that in property or other civil
disputes, civil courts have a duty to adjudicate in
neutral terms, if at all, without resolving underlying
religious issues. Id. at 710. But there is no room
whatever for independent civil adjudication of
"questions . . . at the core of ecclesiastical
concern." Id. at 717; Laurence H. Tribe, American
Constitutional Law 14-11 at 1241 (2d ed. 1988).
Both parties agree that existing case law supports the
position that where issues of ecclesiastical doctrine,
faith, creed or internal discipline of an organized
church are concerned, the secular courts should
Marshall argues that since this case concerns
defamation and breach of and interference with
contract, the court is not called upon to consider the
church's laws in matters of doctrine, discipline or
policy. Marshall claims this case involves secular
legal and factual issues devoid of any religious
concerns. He concludes the fact that both he and Munro
happen to be pastors of the same church is not relevant
to the legal issues in the case, and does not turn the
case into a religious dispute.
Marshall points to Murphy v. Harty, 393 P.2d 206 (Or.
1964), which found that letters written by a clerk of
the Baptist church to two pastors, defaming another
pastor, were actionable in civil court. Marshall
argues that this case is no different. The court need
only decide based upon the secular common law of torts.
Marshall is not questioning the church's authority or
decision making bodies. Marshall is asking for redress
of a personal wrong caused by Munro. He asserts that
just as a battery between two clergy would not make the
battery an "ecclesiastical"issue, the fact that both
he and Munro are clergy does not make this case
Munro claims the dispute involves clergy hiring
decisions, a matter of internal church administration.
He claims the dispute is over Marshall's fitness to be
"called" as a pastor and is thus a core ecclesiastical
dispute, not subject to the jurisdiction of a civil
Munro relies on Higgins v. Maher, 258 Cal. Rptr. 757
(Cal. App. 1989), cert. denied, 493 U.S. 1080 (1990),
which held the court lacked subject matter jurisdiction
over Father Higgins' claims against Bishop Maher for
defamation, invasion of privacy intentional and
negligent infliction of emotional distress, breach of
the covenant of good faith and fair dealing, and
wrongful termination. The court in Higgins concluded
that a secular court should not right wrongs related to
the hiring, firing, discipline or administration of
clergy. Id. at 760. The court held that as
unwarranted and malicious as the Bishop's conduct was,
nonetheless his actions were so intertwined with his
ecclesiastical duties as to warrant the court's refusal
to become involved. Id. at 761.
Munro notes his official church duties require him to
respond to inquiries from other churches which are
considering "calling" a particular pastor. Munro
states that the Book of Order requires a pastor to be
responsible for a quality of life and relationships
that commend the gospel to all persons. He argues that
these religious factors show this case is intertwined
with ecclesiastical duties and warrant the court's
refusal to become involved.
Most cases are consistent in concluding that employment
disputes within churches are core ecclesiastical
concerns outside the jurisdiction of civil courts.2
"The relationship between an organized church and its
ministers is its lifeblood. . . . Matters touching
this relationship must necessarily be recognized as of
prime ecclesiastical concern. Just as the initial
function of selecting a minister is a matter of church
administration and government, so are the functions
which accompany such a selection." Higgins, 258 Cal.
Rptr. at 760 (quoting McClure, 460 F.2d at 558-59).
"In our society, jealous as it is of separation of
church and state, one who enters the clergy forfeits
the protection of the civil authorities in terms of job
In this case the superior court was correct in
abstaining from hearing Marshall's claim for breach of
contract. Marshall's claim that Munro breached a
covenant of good faith would require the court to
interpret Marshall's and Munro's employment
relationship. First Amendment concerns forbid us to
imply contractual duties on religious entities.
Marshall must rely upon administrative remedies the
church provides for his contract claim, even if "the
church itself may be inadequate to provide a remedy."
However, the claims of defamation and interference with
contract should not have been dismissed by the superior
court. Munro's attempt to characterize the dispute as
being over Marshall's qualifications as a pastor is
unpersuasive. The questions raised by the defamation
claim concern only the statements made by Munro. There
is no need for the court to involve itself in
Marshall's qualifications. The court needs to
determine only if Munro actually said: 1) Marshall was
divorced; 2) Marshall was dishonest; 3) Marshall had
throat surgery disabling him as a pastor; and 4)
Marshall made improper advances to a member of the
congregation. If Munro raises the defenses of truth3
and of privilege,4 the court need only determine if the
facts stated were true and if Munro made the statements
with malice (a reckless disregard for the truth or
falsity). There is no need to determine if Marshall
was qualified to be a pastor or what those
qualifications may be.
The elements of the tort of intentional interference
with contract require that: 1) a contract existed; 2)
Munro knew of, and intended to interfere with the
contract; 3) Munro did in fact interfere with the
contract; and 4) Munro's interference caused Marshall's
damages. Ran Corp. v. Hudesman, 823 P.2d 646, 648
(Alaska 1991). Marshall must also show that the
statements were not privileged or justified. Id.
None of these elements involve an ecclesiastical
dispute or an internal discipline proceeding.
This case is distinguishable from Higgins. Higgins
made claims of wrongful termination, breach of the
covenant of good faith and fair dealing, negligent and
intentional infliction of emotional distress, invasion
of privacy and defamation. The court in Higgins first
affirmed the dismissal of the contractual causes of
action. The court then reasoned that "in the context
of Higgins' averments, the torts recited were simply
too close to the peculiarly religious aspects of the
transaction to be segregated and treated separately -
as simple civil wrongs." Higgins, 258 Cal. Rptr. at
761. Accusations of Higgins' misconduct were part of
the process by which the priestly faculties were
In this case the core complaint is for defamation.
Marshall does not claim he was wrongfully terminated.
The defamation and interference with contract claims
are not derivative of the contract claim. There is no
difficulty in separating the contract claim from the
tort claims of defamation and interference with
contract. The court need not examine Marshall's
qualifications or the qualifications required of
pastors in general.
Judge Katz found Munro acted in the course of his duty.
This fact does not divest the court of jurisdiction.
Civil common law has long protected this exact type of
communication by granting a conditional privilege.
The common interest of members of
religious, fraternal, charitable or other non-
profit associations, whether incorporated or
unincorporated, is recognized as sufficient
to support a privilege for communications
among themselves concerning the
qualifications of the officers and members
and their participation in the activities of
the society. This is true whether the
defamatory matter relates to alleged
misconduct of some other member that makes
him undesirable for continued membership, or
the conduct of a prospective member. So too,
the rule is applicable to communications
between members and officers of the
organization concerning the legitimate
conduct of the activities for which it was
Restatement (Second) of Torts 596 cmt. e. (1977).
In Murphy v. Harty, 393 P.2d 206 (Or. 1964), the court
found that a communication between officials of the
Baptist church, relating the charges that led to the
dismissal of a pastor, was conditionally privileged.
"[I]f the evidence discloses that the defendant did not
act in good faith, but took advantage of the occasion
to injure the plaintiff in his character or standing
the communications would cease to be privileged. Id.
at 216 (emphasis added).5
In this case, the superior court is not divested of its
jurisdiction simply because Munro made his remarks
while acting in the course of his duty. That fact only
provides Munro with a conditional privilege, which is
waived if Marshall can prove that Munro acted with
actual malice. Restatement (Second) of Torts 596
cmt. e and 599-605A (1977); see also Murphy, 393 P.2d
at 214. Determining whether Munro acted with actual
malice will not require the court to delve into
ecclesiastical concerns. Rather, the issue is whether
Munro had "reasonable grounds for believing the
defamatory statements . . . and . . . whether they were
motivated by actual malice." Id. at 217. This
question can be resolved without considering Munro's
church related duties and is within the court's
The dismissal of the breach of contract claim is
AFFIRMED. The dismissal of the defamation and
interference with contract claims is REVERSED and
REMANDED. As Munro is no longer the prevailing party,
the award of attorney's fees is also REVERSED.
1. The superior court ruled on summary judgment, taking
the facts in the complaint and the unrebutted affidavit
of Munro as being true. For this appeal we also accept
the facts alleged in the complaint and the unrebutted
affidavit of Munro as being true.
2. Hutchison v. Thomas, 789 F.2d 392 (6th Cir.)
(dismissing for lack of subject matter jurisdiction an
action challenging forced retirement) cert. denied, 479
U.S. 885 (1986); McClure v. Salvation Army, 460 F.2d
553 (5th Cir.) (dismissing for lack of subject matter
jurisdiction class action suit under Title VII claiming
women paid less for same work), cert. denied, 409 U.S.
896 (1972); Black v. Snyder, 471 N.W.2d 715 (Minn. App.
1991) (dismissing for lack of subject matter
jurisdiction breach of contract and defamation suit
resulting from dismissal after Black notified officials
of sexual harassment but allowing sexual harassment
claim), review denied, (Minn. August 29, 1991). But
see Reardon v. Lemoyne, 454 A.2d 428 (N.H. 1982)
(holding suit by parochial school teachers against
bishop, superintendent and school board members for
wrongful termination within civil court's jurisdiction
as long as the dispute does not involve doctrinal
3. Munro maintains that Marshall was in fact divorced.
4. The superior court's finding that Munro acted within
his church duties when responding to inquiries
concerning Marshall should be treated as a finding of a
5. See also Joiner v. Weeks, 383 So. 2d 101 (La. App.
1980) (dismissing claims of wrongful disfellowship and
wrongful deprivation of livelihood and concluding
allegedly defamatory statements made were privileged
and the evidence failed to show by clear and convincing
evidence that members acted with malice); and Pendleton
v. Hawkins, 42 N.Y.S. 626 (N.Y. App. Div. 1896)
(finding the claim for libel arising from a deacon
showing letter from clerk to other deacons and
parishioners remanded for new trial on the basis that
the jury should have been instructed that the
publication was qualifiedly privileged requiring a
finding that the communications were made maliciously).