NALLY v. GRACE COMMUNITY CHURCH OF THE VALLEY (1987)

This is the second time around in the appellate courts for this case.   The first opinion generated a veritable fire storm of controversy in the nation's law reviews. (See, e.g., the authorities collected in fn. 3, p. 224, infra.)   They called it the seminal case in a new cause of action most frequently labeled “clergy malpractice.”   This court, however, does not view the causes of action discussed in our opinion to involve “clergy malpractice.”   Instead we see them more accurately characterized as “negligent failure to prevent suicide” and “intentional or reckless infliction of emotional injury causing suicide”—which negligence and intentional or reckless acts happen to have been committed by church-affiliated counselors.   In our view this case has little or nothing to say about the liability of clergymen for the negligent performance of their ordinary ministerial duties or even their counseling duties except when they enter into a counseling relationship with suicidal individuals.

In this case we reverse the trial court's nonsuit of the negligence and outrageous conduct allegations against Grace Community Church (Church) and several of its pastoral counselors.   We construe the negligence allegations to charge inter alia that the Church's counselors negligently failed to refer this mentally disturbed suicidal youth to those authorized and best suited to prevent an imminent suicide. We find established principles of California law impose a duty of due care on those who undertake a counseling relationship with mentally disturbed suicidal individuals, whether those counselors are affiliated with a religious institution or not.   For those counselors not authorized to prescribe medication or initiate involuntary hospitalization the standard of care may require them, in appropriate cases, to refer counselees to those who possess these powers to prevent an imminent suicide.   A reasonable juror could have found from the available evidence that the counselors in the instant case failed to satisfy this standard of care.   We then hold the First Amendment does not immunize the Church's counselors from liability for failing to meet this standard of care.   Accordingly, the trial court erred in granting nonsuit as to the allegations of negligent failure to refer a suicidal individual to those authorized and suited to prevent an imminent suicide.

At an earlier stage of these proceedings another Court of Appeal construed the “outrageous conduct” count to state a cause of action for intentional or reckless infliction of emotional distress on the suicidal youth which led to his death.   We defer to this prior appellate opinion under the law of the case doctrine.   We then hold the trial court erred in excluding audio tapes the Nally I court had found to raise a triable issue whether the counselors indeed had intentionally or recklessly encouraged this suicidal youth to commit suicide.   Including this audio tape in the assessment and construing the evidence most favorably to appellants we conclude a reasonable juror could have found the counselors acted recklessly in a way which encouraged this suicide.   The Nally I court already held the First Amendment does not create immunity shielding these church-affiliated counselors from liability for intentionally or recklessly encouraging a suicidal individual to take his life.   Accordingly, we reverse the trial court's nonsuit of this count, too.

FACTS AND PROCEEDINGS BELOW

This case arises out of a profound human tragedy—the suicide of a healthy, intelligent young man with a promising future. Kenneth Nally graduated second in his class from high school and was a star baseball player.   He finished college and was contemplating law school.   But while still in his late teens Kenneth had developed a mental illness.   This illness worsened and eventually led this young man to kill himself with a shotgun at the age of 24.

This case also involves a large, well-established church.   As many as 10,000 people attend Grace Community Church on a given Sunday.   In addition to religious services, the Church also conducts a very active counseling program, having had close to 30 counselors in 1979.   Kenneth Nally first came to the Church about 1974.   He became a friend of defendant Cory who was a pastor in the college department of the Church in 1976, 1977 and 1978.   Defendant Cory testified he had no formal counseling sessions with Kenneth but knew the boy was depressed.   He recommended to Kenneth he take counseling from defendants Thomson and Rea.   According to Cory's testimony, he did not recommend Kenneth see a psychiatrist or psychologist although nothing in Mr. Cory's religious belief or the theology of Grace Community Church would say it is wrong to do so.   When Kenneth was hospitalized (three weeks or so before his death) from a suicide attempt, Mr. Cory visited him and overheard him tell defendant MacArthur he (Kenneth) was sorry he had not been successful in the suicide attempt.   He did not convey this information to any doctors or to Kenneth's family.

Duane Rea was employed at Grace Community Church as a counselor.   In this capacity he counseled people with severe emotional problems, including people who were very depressed and who expressed suicidal thoughts.   The counseling is essentially biblical, the witness holding the belief the Bible holds answers to emotional problems.   He counseled Kenneth from January 1978 to April 1978.   Kenneth was distraught and cried from time to time.   He said he could not cope.   Mr. Rea has not had any graduate or undergraduate training in psychology and holds no license in any of the mental health professions.   He considers himself gifted at counseling, qualifying this statement by saying only God can know.

Mr. Rea also testified that while Kenneth was in the hospital following his suicide attempt, he told the youth it was his legal duty to see the hospital psychologist before he could be discharged.   Aside from this occasion, Mr. Rea never recommended Kenneth see a psychologist or psychiatrist.   Nor did he recommend to Kenneth he consult with anyone else, with two exceptions.   At one time Rea asked Kenneth to consult with Mrs. Rea about his girlfriend.   He also counseled Kenneth he should get help from God.   When Mr. Rea visited Kenneth at the hospital, Kenneth stated if he had an opportunity when he was released he would try suicide again.   Mr. Rea did not tell this to the Nally family, nor the doctors.   He stated to do so would be like going to a fire, seeing firemen there and calling the fire department.  (Other evidence at the trial indicated Kenneth never expressed similar sentiments about his intent to commit suicide to his parents or to any of the doctors or anyone else.)

Kenneth also was in a counseling relationship with defendant Thomson.   Mr. Thomson was a pastor at the Church.   He had one course in psychology in college.   He studied biblical or pastoral counseling at a seminary.   He considers Bible study gave him a very good background to help people with their problems.   He has read books on secular psychology as opposed to Christian psychology.   The Church would try to help anyone with emotional problems if they came in.   He believes the Bible gives the root answer to why emotional or psychiatric problems exist.   If there are physical manifestations such as a brain tumor, then it is important to have a medical doctor involved.   It is his conviction that to settle for an answer from secular psychiatry or psychology is to settle for less than God's goal.   Thomson counseled people with severe problems and those with suicidal ideation.   He talked with Kenneth about suicide.   He thought a biblical counselor could help Kenneth and did everything he could to give biblical help.   He met with Kenneth three times in all, beginning a month before the suicide attempt which put Kenneth in the hospital.   He did not tell Kenneth's father that Kenneth contemplated suicide.   His second and third sessions with Kenneth were after the hospitalization.

According to his testimony, Defendant Thomson sees nothing wrong with having a medical doctor prescribe medication for depression, but would not refer someone to a psychiatrist, generally, unless he believed the psychiatrist had a “world view” or was “coming from the viewpoint consistent with the scripture.”   Because Mr. Thomson has reservations about recommending psychiatrists or psychologists, he made a recommendation at the time of the second visit only that Kenneth should see a medical doctor.   According to his testimony, the third time the witness met Kenneth, the latter asked about seeing a Dr. Mohline.   The witness said he strongly recommended Kenneth do so, understanding Dr. Mohline to be a Christian psychologist.

Defendant MacArthur was the pastor-teacher of Grace Community Church.   It is his name on the marquee in front of the Church building.   He never had a counseling relationship with Kenneth prior to visiting him at the hospital after Kenneth's suicide attempt.   At the hospital Kenneth said he was sorry he had not succeeded in taking his life.   After hospitalization Kenneth stayed in Mr. MacArthur's home for some days.   Mr. MacArthur was of the view Kenneth was deeply depressed and his depression was beyond Mr. MacArthur's capabilities to deal with.   According to Pastor MacArthur's testimony, he encouraged Kenneth to see the doctors he had seen in the hospital.   Pastor MacArthur also testified nothing in the Church's religion makes it theologically improper for Kenneth to have seen a psychologist or psychiatrist.   The witness stressed to Kenneth he should fulfill his obligation and see the doctors at the hospital whom the witness thought were psychiatrists or psychologists.   Pastor MacArthur further testified it was not his belief or that of Grace Community Church the “right” psychiatrist had to be a Christian.   The record is inconclusive as to whether Mr. MacArthur communicated with the Nally parents either directly or indirectly.

Before granting the motion for judgment of nonsuit the trial court admitted testimony (over objection of respondents) from four witnesses as to the standard of care to be followed by pastoral counselors.   One witness, Dr. Mohline, not himself a psychologist, was dean of administration of a “school of psychology” and further taught a class in biblical or pastoral counseling at a seminary.   It was his view a pastoral counselor has a responsibility to refer someone with a severe mental problem to a person trained in psychiatry or psychology.

A second witness, Dr. Long, was a board certified psychiatrist and also held a theological degree, having been an ordained Methodist minister.   He testified persons who counsel suicidal people have a duty to investigate “suicidality,” to refer to other specialists and to convey any information received to the family or to another specialist.   It was his view Pastor Rea failed in a duty to investigate the seriousness of Kenneth's suicidal intentions and to refer Kenneth to a psychiatrist once he left the hospital.   The witness opined Mr. Rea did not meet those duties.

A third witness was Dr. Majovski, a licensed psychologist with a divinity degree from a Baptist seminary.   He agreed with Dr. Long as to the existence of these duties.   He did not know if defendant MacArthur adequately investigated Kenneth's “suicidality,” or whether he adequately referred Kenneth to a psychiatrist.   And, as to a duty to convey the information to the family or emergency doctors, the duty existed “if you're subscribing to standards.”   Otherwise it is a matter of choice.

The fourth expert witness, Dr. Adams, was also a licensed psychologist and a minister.   He was not familiar with any formal standards of care for pastoral counselors in dealing with suicidal people.   He also agreed, however, there was a duty in dealing with a suicidal person to investigate and if the person was seriously suicidal to refer to psychologists or psychiatrists and to transmit helpful information to the doctors or the family.   It was his opinion defendant Thomson violated the standards.   This witness was presented with an exhibit which was a guide for biblical counselors at defendant Church.   The exhibit indicated, in the witness' view, that Grace Community Church has no standards.

Walter J. Nally and Maria Nally sued Grace Community Church, and Pastors MacArthur, Rea, Thomson and Cory for the wrongful death of their son.   Plaintiffs' complaint was in three counts.   In the first two of the counts plaintiffs claimed defendants negligently counseled their son, Kenneth, who ultimately committed suicide (at the age of 24) on April 2, 1979.   These counts are labeled respectively “clergyman malpractice” and “negligence.”   The third count, dubbed as “outrageous conduct,” incorporates the first two and claims the alleged negligence was recklessly perpetrated with the knowledge the acts done would increase Kenneth's tendencies to take his own life.

 After summary judgment in favor of defendants was reversed by the Court of Appeal, the case went to trial.   Following a three-week trial, the court granted a nonsuit motion.   Plaintiffs appeal from this judgment.¹

DISCUSSION

I. STANDARD OF REVIEW

 A trial court may not grant a defendant's motion for nonsuit if the plaintiff's evidence would support a jury verdict in the plaintiff's favor.  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 129, 211 Cal.Rptr. 356, 695 P.2d 653.)  “In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses.   Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded.   The court must give ‘to the plaintiff['s] evidence all the value to which it is legally entitled, ․ indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor․’ [Citation.]”   (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118, 184 Cal.Rptr. 891, 649 P.2d 224.)   In an appeal from a judgment of nonsuit the reviewing court likewise is guided by the rule requiring evaluation of the evidence in the light most favorable to plaintiff.  (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839, 206 Cal.Rptr. 136, 686 P.2d 656.)   Only the grounds specified by the moving party in support of his motion may be considered by the appellate court in reviewing a judgment of nonsuit.   (Ibid.)

II. LAW OF THE CASE

We do not write upon an entirely clean slate.   In 1981 the defendants moved for summary judgment.   The trial court granted the motions but another division of this court by a 2–1 vote, reversed.²

 The law of the case doctrine deals with the effect of a prior appellate decision on a subsequent retrial or appeal.  “The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.”  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 737, p. 705.)   The rule applies even though the court on the later appeal is of the view that the prior decision was erroneous.  (Tally v. Ganahl (1907) 151 Cal. 418, 421, 90 P. 1049.)   The doctrine does not apply to points of law which might have been, but were not determined on the prior appeal (Allen v. Cal. Mutual B. & L. Assn. (1943) 22 Cal.2d 474, 493, 139 P.2d 321), particularly where the court in the prior opinion expressly declined to pass on the point.  (Estate of Baird (1924) 193 Cal. 225, 239, 223 P. 974;  9 Witkin, Cal.Procedure, supra, Appeal, § 753, p. 721.)   Nor does the prior opinion constitute law of the case where the evidence at the second trial is substantially different from that considered in the prior opinion.  (9 Witkin, Cal.Procedure, supra, Appeal, § 750, p. 718.)   With these principles in mind we look to see what the first opinion decided, in contrast to the evidence which was introduced at the trial here under review.

In reviewing the previous grant of summary judgment, the appellate court had before it the various declarations and deposition extracts relied upon by the parties.   These established the general course of the counseling and other contacts which Kenneth had had with the defendants over the two years or so prior to his suicide.   To this extent, the testimony of those deponents or declarants who also were witnesses at the trial was generally the same.

But, there was an important difference:  the prior appellate decision relied heavily upon evidence submitted by plaintiffs in opposition to the summary judgment but which was excluded at the trial.   We discuss the propriety of the evidentiary ruling later in this opinion.   For present purposes we note the appellate court in the prior decision was of the view the evidence at issue (certain tapes prepared by defendant Thomson a year after the death of Kenneth, and intended to be used in connection with pastoral training of counselors) could support an inference the defendants “either followed a policy of counseling suicidal persons that, if one was unable to overcome one's sins, suicide was an acceptable and even a desirable alternative to living or recklessly caused such persons extreme emotional distress through their counseling methods if those persons did not measure up to the pastors' religious ideals.”  (Prior opn., p. 8.)   The court then concluded from the evidence presented “a trier of fact might well find that defendants engaged in extreme or outrageous conduct by deliberately encouraging Kenneth Nally to commit suicide or by either deliberately or recklessly increasing his intense feelings of guilt with full knowledge of his past attempts at suicide.”  (Prior opn., p. 11.)   The court then held the defendants had failed to establish there was no triable issue of fact with respect to the “outrageous conduct” cause of action.

Having reached the above conclusion, the prior opinion then turned to an examination of the First Amendment's “free exercise” clause with respect to a cause of action against a church and its clergy for intentional infliction of emotional distress.   Citing the oft-quoted phrase from Cantwell v. Connecticut (1939) 310 U.S. 296, 303–304, 60 S.Ct. 900, 903, 84 L.Ed. 1213, that the free exercise clause “embraces two concepts,—freedom to believe and freedom to act.   The first is absolute but, in the nature of things, the second cannot be,” the court held counseling falls within the latter category.

 Since the court gave consideration to the applicability of the First Amendment to the third count of the complaint, and concluded it would not prevent liability for intentional conduct, we are bound by that opinion.   But, it is clear no such inhibitions prevent examination of the sufficiency of the evidence introduced at trial to support the third count.   It was because of such insufficiency the trial court granted nonsuit as to this count.   The law of the case does not bar us in this respect.

 Nor are we barred in looking at the two negligence counts from a fresh viewpoint.   While plaintiffs argue the First Amendment ruling of the prior opinion must necessarily relate also to these two counts and therefore establish the law of the case, we reject the argument.   Even authority cited in the prior opinion for the proposition a cause of action may be stated against a religious organization for intentional infliction of emotional distress distinguishes this from allegations the organization acted negligently toward a plaintiff.   Of more importance, in its prior opinion the court explicitly stated it need not decide whether the Church had a duty to adequately train pastors as psychological counselors nor whether Mr. MacArthur had a duty to refer Kenneth to a mental health professional.   We thus are not bound by the law of the case with respect to the negligence counts.

III. NONSUIT WAS NOT WARRANTED AS TO THE CAUSE OF ACTION FOR NEGLIGENTLY DISCOURAGING A SUICIDAL PERSON FROM SEEKING PSYCHIATRIC CARE

A. The Jury Could Reasonably Conclude the Standard of Care Imposed on Non-Therapists Who Hold Themselves Out as Counselors Can Require Them to Refer Mentally Disturbed Suicidal Persons to Those Individuals or Institutions Authorized and Specially Suited to Prevent Suicide.

Several law review commentators have written on this topic, especially as it relates to counselors affiliated with a religious institution.   These commentators have taken a variety of positions.³  At this stage we are interested in a somewhat broader question—the duty of non-therapist ⁴ counselors whether they be religious or secular in their orientation.   Our research has not uncovered any court decision which has ruled one way or the other specifically on the existence or scope of a non-therapist counselor's duty toward suicidal counselees.   On the other hand, unlike most jurisdictions, the California courts have spoken clearly on the closely related issue of the duty of psychotherapists toward their suicidal patients.   Logic and policy both dictate the duty announced in those cases applies to non-therapist counselors as well.

 We first recognize with the sole exception of homicide that suicide is by far the most serious consequence which can flow from mental illness.   Thus someone who chooses to counsel a person exhibiting suicidal tendencies may assume a duty which does not attach to the counseling of persons with lesser mental or emotional problems.   That is the duty to take appropriate measures to minimize the likelihood the suicide will take place.

 It is a question of law whether one person has a duty of due care toward another—as is the more specific question of whether he has assumed such a duty by establishing a “special relationship” with that person.   (Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.)   Under general principles of Anglo-American law applicable in California it is clear a bystander watching someone about to leap off a cliff has no duty to attempt to prevent that suicide.   Nor would he have a duty to suggest the suicidal individual see a psychotherapist or enter a psychiatric hospital.   (Rest.2d, Torts, § 314;  4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, §§ 554–555, and authorities cited therein.)   This is true even when it is reasonably foreseeable—and indeed readily apparent—the individual will kill himself.   The law simply does not require anyone to be a “good samaritan.”  (This view has not been without its critics, however.   See, e.g., Soldano v. O'Daniels (1983) 141 Cal.App.3d 443, 190 Cal.Rptr. 310;  Shapo, The Duty to Act:  Tort Law, Power and Public Policy (1977);  Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability (1908) 56 U.Pa.L.Rev. 217;  Ames, Law and Morals (1908) 22 Harv.L.Rev. 97;  Rudolph, The Duty to Act:  A Proposed Rule (1965) 44 Neb.L.J. 499;  Franklin, Vermont Requires Rescue:  A Comment (1972) 25 Stan.L.Rev. 51;  Weinrib, The Case for a Duty to Rescue (1980) 90 Yale L.J. 247.)

But what does it take to acquire a duty to attempt to prevent that leap off the cliff?   For one thing, in certain circumstances mere ownership of the “cliff” may be enough.   A Federal court has held a hotel has a duty to take precautions against a suicidal leap from its building where others have jumped in the past.  (Sneider v. Hyatt Corporation (N.D.Ga. 1975) 390 F.Supp. 976.)   The court emphasized the hotel's knowledge of those former suicides and the obviously strange behavior the latest jumper exhibited when she checked in.

If “owning the cliff” is enough to create a “special relationship” with potential suicides, what about someone who offers to counsel those approaching the cliff about the emotional problems that might lead them to jump off?   California has taken the lead in answering this question.   For two decades, it has imposed a duty on psychiatrists (and presumably all varieties of licensed psychotherapists) to prevent suicide among their patients.

This cause of action was first recognized in 1967.   The case was brought against the hospital where the deceased was undergoing psychiatric treatment.   The California Supreme Court held the hospital had a special relationship with their patients and a duty to take preventive measures where it appeared likely one of them might attempt suicide.  (Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 62 Cal.Rptr. 577, 432 P.2d 193.)   Any possible doubts this duty extends only to hospitals and not the individual practitioners who treat patients was dispelled a year later in Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519.   There the court expressly approved a cause of action against both the hospital and the doctor who was treating the patient who committed suicide.

In Bellah v. Greenson (1978) 81 Cal.App.3d 614, 146 Cal.Rptr. 535, a California Court of Appeal confronted the issue whether this duty extends to psychiatrists who are counseling patients outside a hospital setting.   The court had no difficulty deciding it does.  “[T]he complaint alleged the existence of a psychiatrist-patient relationship between defendant and Tammy [the suicide], knowledge on the part of the defendant that Tammy was likely to attempt suicide, and a failure by defendant to take appropriate preventive measures.   We are satisfied that these allegations are sufficient to state a cause of action for the breach of a psychiatrist's duty of care towards his patient.   The nature of the precautionary steps which could or should have been taken by defendant presents a purely factual question to be resolved at a trial on the merits, at which time both sides would be afforded an opportunity to produce expert medical testimony on the subject․” (81 Cal.App.3d at p. 620, 146 Cal.Rptr. 535.)   Moreover, the court observed this duty has existed under accepted principles of California law for many years.  (81 Cal.App.3d at p. 623, 146 Cal.Rptr. 535.)

 These cases happened to involve psychiatrists and hospitals.   Nonetheless, the duty they announced applies likewise to counselors, other than licensed psychotherapists, who hold themselves out as capable of dealing with mental and emotional illness severe enough to lead to suicide.   We find no grounds in reason or policy for considering psychiatrists to have a “special relationship” with their suicidal counselees but other varieties of counselors not to have assumed a “special relationship” with their suicidal counselees.   The person being counseled has a similar if not identical dependence on the counselor—whether the latter is a psychiatrist or some other type of counselor.   The counselor, in turn, has voluntarily undertaken that relationship.   Indeed, whether a psychiatrist or not, the counselor usually has invited the counselee's dependence by holding himself out as especially competent to treat emotional problems.   Accordingly, we hold the non-therapist counselor who has held himself out as competent to treat serious emotional problems and voluntarily established a counseling relationship with an emotionally disturbed person has a duty to take appropriate precautions should that person exhibit suicidal tendencies.⁵

 We emphasize this duty does not extend to personal friends emotionally disturbed people may consult for advice and counsel about their problems.   Unlike counselors—therapists and non-therapists alike—the ordinary person has not held himself out as possessing any expertise in treating emotional problems and invited a special relationship of dependence with seriously disturbed individuals.   Similarly, it is easy to distinguish “teen hotlines” or analogous services which only offer short-term “band aid” counseling since they have not undertaken a sufficient “special relationship” with the counselee to justify imposition of a duty to prevent foreseeable suicides.   Nor do we hold a duty arises when a parishioner approaches a pastor after morning services for some casual advice about his emotional problems.   In the instant case, in contrast, there is ample evidence the Church's pastoral counselors were more than personal friends giving young Nally some incidental amateur advice about his emotional problems as an act of friendship.   There also is ample evidence demonstrating the Church's pastoral counselors were offering and giving something far beyond short-term “band aid” counseling or “casual advice.”   Indeed the Church was advertising its counselors were competent to treat a full spectrum of serious as well as less serious emotional problems. Furthermore, the evidence indicates the Church's pastoral counselors actually had an ongoing counseling relationship with young Nally that stretched over a five-year period.

 This does not mean the standard of care expected of a non-therapist is exactly the same as what would be expected of a full-fledged psychiatrist or other licensed psychotherapist.   Ordinarily the non-therapist counselor has less education and experience in diagnosing and treating seriously mentally ill persons.   This affects the standard of care to which they can be held. Non-therapist counselors have no duty to take appropriate precautions against a suicide unless that suicide is foreseeable to them.   Thus they would not violate their standard of care where the counselee's behavior would lead a therapist to foresee suicide but would not lead a non-therapist counselor to that same conclusion.  (Compare Bogust v. Iverson (1960) 10 Wis.2d 129, 102 N.W.2d 228 [director of testing center had no diagnostic training or experience hence suicide not foreseeable and wrongful death action dismissed] with Sneider v. Hyatt Corporation, supra, 390 F.Supp. 976 [hotel employees could foresee guest was suicidal because of this guest's bizarre behavior and past suicides at hotel].)

 Once the suicide is foreseeable, the lesser standard of care imposed on non-therapist counselors also may affect the precautions against suicide they reasonably can be expected to take.   In most instances these counselors lack the authority to hospitalize a potential suicidal individual or to administer anti-depressants or other drugs which might forestall a suicide.⁶  Likewise they may lack the training and experience to personally deal with this level of mental disturbance and prevent the suicide through mere words.   However, once they have diagnosed the individual counselee as a foreseeable suicide they do have the ability to refer the person to those who do have the authority and the expertise to prevent suicides.⁷  Accordingly, the minimal standard of care a non-therapist owes to a counselee he diagnoses as suicidal is to take steps to place him in the hands of those to whom society has given the authority and who by education and experience are in the best position to prevent the suicidal individual from succeeding in killing himself.⁸

One commentator, himself a rabbi, has urged that religious counselors in particular should be held to this standard of care, that is, that they be liable in tort if they fail to place counselees they diagnose as suicidal in the hands of those individuals and institutions better suited to prevent suicide.  “We can ․ analogize the relationship of the clergyman and the professional psychiatrist or psychologist to that of general practitioner and specialist.   Just as the medical general practitioner has the duty to call in a specialist if a reasonably careful general practitioner would do so under the circumstances, so the first duty of the clergyman should be to recognize when the problem is beyond his skill and refer the congregant to one with more specialized training.”  (Bergman, Is the Cloth Unraveling?   A First Look at Clergy Malpractice, supra, 9 San Fernando Val.L. Rev. 47, 63.)   We further note there was extensive testimony in the record of this trial from expert witnesses in pastoral counseling.   These witnesses said the standard of care for pastoral counselors required them to refer suicidal individuals to those in a better position to prevent suicide.

 The duty to refer a physically ill but mentally healthy individual to a specialist who can treat his life-threatening illness is, often quite different from the duty to refer a mentally disturbed person to a facility authorized to prevent him from killing himself.   This is especially true when the mentally disturbed counselee has stated he wants to end his life and soon. The physician treating the physically ill but mentally healthy patient ordinarily fulfills his duty to refer merely by telling the patient he has a life-threatening illness which can only be cured by a certain kind of specialist.   Almost invariably the patient will head for the specialist's office by the fastest means of transportation he can find.   A counselor treating a mentally ill person—especially one who wants to die and die soon—can make no such assumptions.   Frequently, the counselee is too mentally disturbed to accept and follow this advice.   And indeed the advice often is contrary to the counselee's own expressed wishes.   Nevertheless, in many instances, the standard of care expected of counselors treating suicidal counselees indeed can be satisfied merely by telling the counselee he should see a psychotherapist or go to a psychiatric facility about his suicidal feelings.   But where it becomes apparent the counselee is resistant a jury could reasonably find the counselor should have taken further steps, which on occasion may include informing those in a position to prevent the counselee's suicide about the factors suggesting the counselee harbors imminent plans to kill himself.

The dissent argues a counselor cannot face liability for failing to reveal a counselee's intention to commit suicide because of Bellah v. Greenson, supra, 81 Cal.App.3d 614, 146 Cal.Rptr. 535.   In that case, a Court of Appeal held a psychiatrist could not be found liable for failing to warn the family of a patient about his suicidal tendencies.   The court justified this ruling by holding the policies behind the statutory privilege of confidentiality between psychotherapist and patient outweighed the need to reveal the patient's confidential communications to the family.

There are two vital differences, however, between Bellah and the instant case. First, here there is no statutory privilege whose legislative policies must be overcome.   Neither the psychotherapist-patient privilege nor the clergyman-penitent privilege applies to communications between a pastoral counselor and his counselee.  (Simrin v. Simrin (1965) 233 Cal.App.2d 90, 94 [communications made to a clergyman in the course of marriage counseling do not qualify for the clergyman-penitent privilege].   This same conclusion was reached in People v. Edwards (1987) 194 Cal.App.3d 430, 239 Cal.Rptr. 526, where a communication to an Episcopal priest was deemed to have been made in the context of pastoral counseling rather than a confession and thus did not qualify for the clergy-penitent privilege.   However, rehearing has been granted as to this or some other issue in this case.   If a statutory privilege did apply a court could not require disclosure without confronting and overcoming the legislative policy of absolute confidentiality expressed in the statute.   This courts are rightly quite reluctant to do.   Thus, they do so only when the need for disclosure is overwhelming as when the patient states an immediate intent to kill a specific third person.  (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334.)   The Bellah court was unwilling to find the interest in having a psychiatrist disclose the suicidal intentions of his patient to the family was enough to justify the extraordinary step of finding this policy overpowered the legislative intent expressed in the statutory psychotherapist-patient privilege.   But in the instant case there is no expressed legislative intent to overcome.   If there is to be a policy supporting confidentiality of communications between pastoral or secular non-therapist counselors and their counselees we as a court would have to create that policy.

The second distinction between Bellah and the instant case involves the interest served by disclosure of the counselee's suicidal intentions.   In Bellah the suicidal patient already was in the hands of someone authorized to administer medication and to initiate involuntary hospitalization.   In another holding the Bellah court recognized a longstanding duty of due care the psychiatrist owed to take reasonable precautions to prevent suicide.   Under this ruling, the psychiatrist could well have been held liable for negligently failing to administer medication or to initiate hospitalization which might have prevented the suicide.   Thus the failure to apprise the family of the patient's suicidal intentions in Bellah did not prevent the patient from being placed in the hands of someone authorized to prevent suicide because the patient already was in those hands.   In the instant case, however, the failure to disclose Nally's imminent intent to kill himself not only to the family, but more importantly to professionals authorized and equipped to prevent suicide, did have this unfortunate consequence.   Thus, the interest served by disclosure in the instant case was much weightier than the interest that would have been served by disclosure in Bellah.   Whether this interest would be enough to overcome a statutory privilege preserving the confidentiality of communication between pastoral counselors and their counselees we need not decide.   For, as we already have pointed out, there is no statutory privilege and thus no expressed legislative intent to overcome.

We concede there is some public purpose served by preserving a measure of confidentiality between non-therapist counselors and their counselees.   Presumably the latter will be more forthcoming with their counselors if they know their confidences will not be shared with others and thus the counseling may be more effective.   But this policy goal must be balanced against the values served by disclosure of certain information to certain people under certain circumstances.   We are not persuaded the policy favoring some confidentiality for counselor-counselee communications is enough to justify silence when a counselee's very life is at stake.   Accordingly, we hold the interest in disclosure is sufficient to impose liability where a reasonable standard of care would require the counselor to warn someone authorized to prevent an imminent suicide.

To sum up, we hold religious counselors, along with secular counselors, have a duty with regard to suicidal counselees.   In appropriate cases, moreover, a jury could reasonably find the standard of care can be satisfied only by placing a suicidal counselee in the hands of those best able to prevent these counselees from killing themselves.   This by no means should be construed to require the religious counselors to disengage, however.   There is no duty for them to abandon their counselees or to stop giving them religious counseling.   The legal responsibility, where it exists, is instead in the affirmative—to insure their counselees also are under the care of psychotherapists, psychiatric facilities, or others authorized and equipped to forestall an imminent suicide.   The church's duty to train its counselors as to suicide prevention, in turn, is dependent upon and coextensive with the counselors' duty toward suicidal counselees.   Since we hold the counselors have the duty as outlined above, the Church has a companion duty to insure its counselors are aware of these responsibilities and how to discharge them.   Accordingly, we hold count 2 of the complaint likewise states a cause of action.

B. The Evidence the Church's Counselors Breached Their Duty as Non-Therapist Counselors Was Sufficient to Overcome a Nonsuit Motion

 Setting aside for the moment any First Amendment considerations, we hold the Church's counselors had a duty to take appropriate measures to prevent Nally's suicide.   Moreover, we find the evidence submitted at trial was sufficient to overcome a nonsuit motion on the following issues:

(1) Nally's suicide was foreseeable to the Church's counselors.   The counselors themselves testified young Nally had told them he intended to commit suicide after his release from the hospital.   This and other facts known to the counselors were enough to make the suicide foreseeable even to an ordinary citizen possessed of similar knowledge.

(2) The Church's counselors failed to satisfy the non-therapist counselor's minimal standard of due care by neglecting to refer Nally to psychiatrists or a psychiatric hospital or other mental health professionals society has authorized and equipped to minimize the risk Nally would commit suicide.   Although the evidence was conflicting there was testimony even from the Church's counselors themselves which could have led a jury to reasonably conclude they had failed to encourage young Nally to consult a psychotherapist and indeed said things which discouraged him from doing so.   The jury likewise reasonably could have concluded the Church's counselors, knowing Nally was not consulting with psychotherapists, failed to share vital information with Nally's parents or with medical doctors treating him or with any psychotherapist, any of whom might have decided to intervene to commit him to a mental health facility.   Of special significance was Nally's statement he intended to kill himself after he left the hospital.   He made this statement only to the Church's counselors.   Because they did not pass this information along to hospital staff or Nally's parents young Nally was released.   Shortly thereafter, he fulfilled his promise to take his life.

We find this evidence sufficient, when construed most favorably to appellants, to justify a reasonable juror in finding the Church's counselors negligently breached their duty to effectively refer Nally to those who were authorized and equipped to prevent an imminent suicide.   We likewise find the evidence sufficient to sustain a finding the Church negligently breached its duty to train its counselors in their responsibilities to refer suicidal counselees or to otherwise insure they were aware of these responsibilities.   Admittedly, we also find sufficient evidence in the record for a reasonable juror to have concluded some or all of the Church's counselors actually exercised reasonable care in attempting to refer Kenneth Nally to mental professionals authorized and equipped to prevent an imminent suicide.   But this latter finding, of course, is entirely irrelevant when deciding on the propriety of a nonsuit.

C. Constitutional Guarantees of Freedom of Religion Do Not Immunize the Church's Counselors from Satisfying a Standard of Care Which the Jury May Find Required Them in This Case to Refer Nally to Those Whom Society Has Authorized and Equipped to Prevent Suicide

Grace Community Church and its counselors argue they are constitutionally exempt from any duties or standard of care the law may impose on secular counselors.   They base this claim of immunity on the First Amendment guarantee of the right to “free exercise of religion.” ⁹  According to their argument, counseling by “pastoral counselors” is a form of communication of religious belief analogous to preaching from the pulpit.   To impose liability for negligent counseling would “chill” the pastoral counselors in their communication of religious belief and thus would impinge on their right to “free exercise of religion.”

1. The Basic Principles of the “Free Exercise” Clause

Religious freedom is guaranteed American citizens in just 16 words in the First Amendment.  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;  ․” (U.S. Const., Amend. I;  italics added.)   As can be seen, it creates two very different protections.   The “establishment clause”—actually an “anti -establishment clause”—guarantees us the government will not use its resources to impose religion on us.   The “free exercise clause,” on the other hand, guarantees us government will not prevent its citizens from pursuing any religion we choose.

The “establishment clause” comes into play when a government policy has the effect of promoting religion—as by financing religious schools or requiring religious prayers in public schools, and the like.   These policies violate the establishment clause unless they survive a three-part test.   They must have a secular purpose.   Their primary effects must be ones which neither advance nor inhibit religion.   And they must avoid any excessive entanglements with religion.  (Lemon v. Kurtzman (1971) 403 U.S. 602, 612–613, 91 S.Ct. 2105, 2111, 29 L.Ed.2d 745;  see also Committee for Public Education v. Nyquist (1973) 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948;  Abington School Dist. v. Schempp (1963) 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844.)   However, to hold “pastoral counselors” to the same standards as secular counselors in no sense tends to establish or promote religion.   Hence the instant case does not raise potential objections under the “establishment clause” and we have no occasion to confront the three questions which must be satisfied when a governmental policy does have the effect of furthering religion.  [Moreover, assuming the “establishment clause” were relevant, the discussion of the “free exercise” clause on the following pages demonstrates those three questions could be answered in a way which supports the constitutionality of the pastoral counselors' duty to refer mentally disturbed suicidal counselees.   That is, the following discussion shows this duty not only serves a secular interest but a compelling secular interest (pp. 234–235, infra).   The primary purpose and effect is to diminish the frequency of suicide not to advance or inhibit any religion (pp. 234–235, 236, infra).   And finally, the duty as recognized in this opinion avoids any unnecessary or excessive entanglement with religion (pp. 235–236, infra).]

Whether the “free exercise clause” requires us to exempt “pastoral counselors” from the duty to prevent suicide presents a more difficult issue.   The “free exercise clause,” in contrast to the “establishment clause,” was adopted without debate or comment when the First Congress deliberated the Bill of Rights.  (Malbin, Religion and Politics:  The Intentions of the Authors of the First Amendment (1976).)   Thus the courts have turned to other writings by those responsible for the Bill of Rights, especially James Madison and Thomas Jefferson, to divine the meaning of “free exercise of religion.”

 The subsequent cases interpreting these four words make it clear that while the free exercise clause provides absolute protection for a person's religious beliefs, it provides only limited protection for the expression of those beliefs.  (Cantwell v. Connecticut, supra, 310 U.S. 296, 303–304, 60 S.Ct. 900, 903–904, 84 L.Ed. 1213;  Bowen v. Roy (1986) 476 U.S. 693, 106 S.Ct. 2147, 2152, 90 L.Ed.2d 735.)   Freedom of belief is absolutely guaranteed, freedom of action is not.   Thus government cannot constitutionally burden any belief no matter how outlandish or dangerous.   But in certain circumstances it can burden an expression of belief which adversely affects significant societal interests.   To do so, the burden on belief must satisfy a four-part test:  First, the government must be seeking to further an important—and some opinions suggest a compelling—state interest.   Secondly, the burden on expression must be essential to further this state interest.   Thirdly, the type and level of burden imposed must be the minimum required to achieve the state interest.   Finally, the measure imposing the burden must apply to everyone, not merely to those who have a religious belief;  that is, it may not discriminate against religion.   A straightforward exposition of three prongs of this test is found in United States v. Lee (1982) 455 U.S. 252, 257–258, 102 S.Ct. 1051, 1055–1056, 71 L.Ed.2d 127 where the Supreme Court held:  “The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.  (Citations omitted.)”   All four are mentioned in Braunfeld v. Brown (1961) 366 U.S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563:  “If the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid․  But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.”   (See also Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624;  Wisconsin v. Yoder (1972) 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15;  Gillette v. United States (1971) 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168;  Sherbert v. Verner (1963) 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965;  Cantwell v. Connecticut, supra, 310 U.S. 296, 304–305, 60 S.Ct. 900, 903–904.)

A review of the Supreme Court's “free exercise” rulings makes it apparent these factors are interrelated.   Roughly speaking, the heavier the burden the government imposes on the expression of belief and the more significant the particular form of expression which is burdened, the more important the state interest must be.   Or to put it the other way around, the more important the interest the state seeks to further, the heavier the burden it can constitutionally impose on the more important forms of expressing religious belief.   Thus, only the most compelling of state interest—such as the preservation of life or of the state itself—will justify an outright ban on an important method of expressing a religious belief.  (See, e.g., Reynolds v. United States (1878) 98 U.S. (8 Otto) 145, 164, 25 L.Ed. 244 [polygamy can be outlawed even though a central religious tenet of the Mormon religion because it “has always been odious among the northern and western nations of Europe ․ and from the earliest history of England ․ has been treated as an offence against society.”  (Italics added.) ];  Prince v. Massachusetts (1943) 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 [parents can be prohibited from allowing their children to distribute religious literature even though this is a religious duty required in order to avoid “everlasting destruction at Armageddon” where necessary to protect the health and safety of youth];  Jacobson v. Massachusetts (1904) 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 [adults and children can be compelled to be vaccinated for communicable diseases even though their religious beliefs oppose vaccination because as was observed in Prince v. Massachusetts, supra, 321 U.S. at pp. 166–167, 64 S.Ct. at p. 442, “The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”].)

But a less significant state interest may be enough where the burden is less direct or the form of expression less central to the exercise of the particular religion.  (See, e.g., Goldman v. Weinberger (1986) 475 U.S. 503, 106 S.Ct. 1310, 89 L.Ed.2d 478, where the military's apparently rather marginal interest in absolutely uniform attire was enough to justify an outright ban against a Jewish officer's apparently rather marginal form of religious expression in wearing a yarmulke [a religious cap] indoors;  Bowen v. Roy, supra, 106 S.Ct. 2147, where the Federal government's interest in administrative convenience in preventing fraud in a benefit program was enough to justify the minimal burden of denying benefits to those who because of religious beliefs refuse to obtain and reveal social security numbers.   In this case, the burden was deemed slight enough that it could be constitutionally justified by showing it “is a reasonable means of promoting a legitimate public interest.”  (Id., at p. 2156, italics added);  Braunfeld v. Brown (1961) 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 where Chief Justice Warren holds the governmental interest in prohibiting economic activity on Sundays is enough to justify imposing the burden of an economic loss on those orthodox Jews who choose to exercise their religious belief that they not work on Saturdays and thus lose two rather than only one day's opportunity to earn money.  “[T]he case before us ․ does not make unlawful any religious practices of appellants;  the Sunday law simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive.”  (366 U.S. at p. 605, 81 S.Ct. at p. 1147;  italics added.)

2. Any Requirement They Refer Does Not Impose Any Burden on the Free Exercise of Religion by Grace Community Church's Pastoral Counselors Because This Responsibility Is Not Inconsistent with Their Religious Beliefs

 Before the “free exercise clause” even comes into play it must be established the governmental policy in question indeed asks a person to do something against his religious beliefs or to desist from doing something his religious beliefs require him to do.   The fact someone has a personal preference—not grounded in religion—to disobey a law in no way invokes the sacred protections of the Freedom of Religion guarantees of the Constitution.   Even where he claims he disobeyed because of his religion it is an issue of fact whether he sincerely entertains a religious belief that is inconsistent with obedience to the law.   Otherwise the law could be continually frustrated by people willing to make false claims about the beliefs espoused by their religions.  (See United States v. Seeger (1965) 380 U.S. 163, 185, 85 S.Ct. 850, 863, 13 L.Ed.2d 733 and Theriault v. Carlson (5th Cir.1974) 495 F.2d 390, 395, both holding courts can inquire whether parties claiming to hold certain religious beliefs actually subscribe to them.)

This principle was explored extensively in Wisconsin v. Yoder, supra, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15.   In this case the Supreme Court ruled the state cannot compel Amish children to continue in school beyond the eighth grade.   The Court justified this exemption from the state's compulsory education law only after examining the religious beliefs of the Amish and their way of life.   On the basis of this review the Court concluded education beyond the eighth grade indeed would encroach “on their rights and the rights of their children to the free exercise of ․ religious beliefs․” (406 U.S. at p. 215, 92 S.Ct. at p. 1533.)   The Court explained the need to determine whether the Amish refused to follow this law because of their religious beliefs rather than because of personal preference or philosophy.  “[T]o have the protection of the Religion Clauses, the claims must be rooted in religious belief.   Although a determination of what is a ‘religious' belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.   Thus, if the Amish asserted their claims because of their subjective evaluation and rejection of the contemporary secular values accepted by the majority, much as Thoreau rejected the social values of his time ․ their claims would not rest on a religious basis.   Thoreau's choice was philosophical and personal rather than religious, and such belief does not rise to the demands of the Religion Clauses.”  (406 U.S. at pp. 215–216, 92 S.Ct. at p. 1533.)

To illustrate, we now have Supreme Court authority the Amish need not send their children to school beyond the eighth grade.   This does not mean Methodist parents could avoid the compulsory education law for their children where that religion has no objection to education beyond the eighth grade.   Nor would the Court be foreclosed by the First Amendment from inquiring into the actual beliefs of the Methodist Church if the parents claimed their religion opposed education beyond this level.   Moreover, the parents would have to prove any personal beliefs they held which opposed post-eighth grade education were religious in nature and not matters of personal preference or philosophy.

 In the instant case, the evidence fails to establish the Grace Community Church or its counselors hold any religious belief which would preclude them from fulfilling any responsibility the jury may find requiring them to refer suicidal counselees to those authorized and best suited to prevent young Nally from taking his life.   Indeed there was substantial evidence—including testimony from the senior pastor, Reverend MacArthur—to the effect the Church's doctrine, beliefs, and counseling practices are perfectly consistent with a referral to a psychiatrist or other nonreligious psychotherapeutic resource.   With the exception of one of the Church's counselors, other excuses were given, having nothing to do with religious ideology, for failing to refer Nally to a psychiatrist or psychiatric hospital.   True, the remaining counselor testified he was personally opposed to referring counselees to “non-Christian” psychotherapists.   However, his testimony was not very precise as to whether he was expressing a genuine religious belief.   Indeed the jury could have reasonably construed this testimony to reflect a personal preference not a religious belief, analogous to a Freudian psychoanalyst saying he would not refer a patient to a “non-Freudian” therapist.   Moreover, nothing in his testimony suggested this counselor had any objection—religious, personal, or otherwise—to referring a counselee to a “Christian” psychotherapist.¹⁰  There was evidence “Christian” psychotherapists exist—one of the witnesses, for instance, testified he was a “born again Christian” psychiatrist.   Accordingly, even as to this counselor the evidence was sufficient to find he did not entertain a religious belief which he would have had to abandon in order to comply with the duty to refer Kenneth Nally to someone authorized and equipped to prevent suicide.   At the least he could have reconciled his religious beliefs and his legal duties by referring the young man to a “Christian” psychotherapist.

Even if freedom of religious expression were a defense to a lawsuit for breaching the counselor's duty to refer suicidal counselees to psychiatric facilities, it is an issue of fact whether the defendant's religion actually prohibited such referrals.   On the record before the trial court when it heard this nonsuit motion, it was reasonable to conclude the Grace Community Church's counselors held no religious beliefs inconsistent with referring Nally to those individuals or institutions authorized and equipped to prevent suicide.   Accordingly, it was error to grant a nonsuit on “free exercise” grounds.

3. The State's Compelling Interest in Preservation of Life Justifies the Minimal Burden on Religious Expression Involved in Imposing Liability for Failing to Refer Suicidal Counselees to Those Authorized and Equipped to Prevent Suicide

At the retrial of this case, respondents may well introduce additional evidence establishing that, after all, Grace Community Church's counselors actually do entertain religious beliefs inconsistent with fulfilling their responsibility to refer (and, if necessary, warn).   In an effort to avoid yet another round of “judicial ping pong” between the trial and appellate courts we address the constitutional issue this factual finding would raise.   Would the “free exercise” clause immunize the counselors and their Church from liability for failing to comply with the minimal duties of referral and warning which the law imposes on other counselors who are treating foreseeably suicidal persons?

To answer this question we apply the four criteria discussed earlier (see pp. 230 –231, supra,) to the tort duty which imposes liability on all counselors, including the pastoral variety, who fail to refer foreseeably suicidal counselees to those best able to prevent suicide.   Those criteria are:  (1) the importance of the state interest this duty serves, (2) the necessity of burdening religious expression to further the state interest, (3) whether the type and level of burden this duty imposes is the minimum needed to achieve the objective, and, (4) whether this duty somehow discriminates against religious counselors as opposed to other types of counselors.

(1) We have no difficulty holding California has a compelling interest in preventing its citizens from committing suicide.   Society has a profound interest in preserving life and preventing death.   Thus we treat murder as the most serious of crimes.   Yet suicide has the same end result—the premature death of a healthy human being. Not surprisingly, therefore, we find government firmly committed to the prevention of suicide.

The State of California has an especially strong public commitment to suicide prevention.   This commitment is evidenced by Penal Code section 401 which makes it a crime to participate in any way in another's suicide.   This section provides:  “Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony.”  (Cal.Pen.Code, § 401.) It is further evidenced by the statutes calling for the restraint and commitment of mentally disturbed persons who are a danger to themselves, that is, suicidal.  (See Cal.Welf. & Inst.Code, §§ 5150, et seq.) Significantly, these laws authorize certain professionals—but not “pastoral counselors”—to initiate involuntary commitment of suicidal persons.¹¹

(2) California's compelling state interest in suicide prevention is served by imposing liability on all those who undertake to counsel mentally disordered people and whose negligence allow counselees to commit suicide.   Indeed as discussed earlier, the courts of this state already have extended this liability to hospitals and psychiatrists. (See cases and discussion at pp. 225–226, supra.)

The lives of mentally disturbed people who happen to go to a pastoral counselor are just as precious as those who go to a psychiatrist or some other mental health practitioner.   The only way the public can guarantee the former will have as good a chance of surviving as the latter is if pastoral counselors have the same legal duty to take care that their counselees not kill themselves.   If the public interest in suicide prevention is furthered by imposing a duty of due care on other counselors it also is furthered by imposing that duty on pastoral counselors.   Accordingly, we hold exempting pastoral counselors from this duty would defeat a compelling state interest in suicide prevention ¹² while including them within the compass of this duty furthers this same compelling state interest.

(3) A governmental policy which burdens religious expression must be “narrowly tailored” so it achieves the desired state interest with a minimum of restriction on the free exercise of religious freedom.  (Thomas v. Review Bd., Ind.Empl.Sec.Div., supra, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432; Braunfeld v. Brown, supra, 366 U.S. 599, 607, 81 S.Ct. 1144, 1148;  Sherbert v. Verner, supra, 374 U.S. 398, 406, 83 S.Ct. 1790, 1795;  see p. 230, supra.)   Thus indirect burdens on religious expression are allowed where an outright ban or other direct interference would not.  (See, e.g., cases discussed at pp. 231–232, supra.)

The instant case does not involve a “direct” burden on religious expression.   The legal duty and reasonable standard of care recognized in this opinion in no sense prohibits the Church and its counselors from holding or expressing their religious views through the counseling of their parishioners or others.   They remain free to counsel anyone, including those with the most serious mental disorders and even those who exhibit suicidal tendencies.   The appellants have not argued nor has this court ruled the Church's pastoral counselors are liable in negligence merely for counseling or continuing to counsel someone whom they have reason to believe is suicidal.   Accordingly, we need not reach the issue whether such an outright ban might be an “overly restrictive” rather than a “narrowly tailored” means of preventing suicide among those being counseled by pastoral counselors.  [For this and other reasons, our rationale in this case in no way conflicts with a recent Ninth Circuit decision (Paul v. Watchtower Bible and Tract Society of New York (9th Cir.1987) 819 F.2d 875] which held civil liability could not be imposed on members of a religion merely for engaging in the religious practice of “shunning” former members of the religion.   Here the Church and its counselors are not being held liable merely for engaging in religious counseling of suicidal individuals but for failing to discharge other duties of due care they owed those individuals.]

Likewise none of the legal responsibilities recognized in this opinion prohibit the Church's counselors from relying on religious doctrine to deal with the counselees' mental disorders and emotional problems. Again the appellants have not argued for nor has this court ruled the Church's counselors could be held negligent because they espoused the teachings of Moses and Jesus instead of Freud and Jung.   Nor have we held a cause of action could be stated for negligently choosing the “wrong” scripture to answer the particular problems of a given suicidal counselee, when other passages or other forms of religious advice might have forestalled his death.   As a result, neither the trial court nor this court need probe the content of respondents' religious counseling or attempt to judge its validity. Nor do we have to determine whether it is feasible—or wise—to articulate a “standard of reasonable counseling” which can be applied to religious counselors of all faiths or to set different standards for each religion.  (This issue has bothered more than one commentator—see, e.g., Ericsson, Clergyman Malpractice:  Ramifications of A New Theory, supra, 16 Val.U.L.Rev. 163;  Note, Intentional Infliction of Emotional Distress by Spiritual Counselors: Can Outrageous Conduct Be “Free Exercise?”, supra, 84 Mich.L.Rev. 1296;  Note, Seeing in a Mirror Dimly?   Clergy Malpractice as a Cause of Action:  Nally v. Grace Community Church, supra, 15 Cap.U.L.Rev. 349.)   Consequently, we need not address the issue whether a rule which imposed liability on pastoral counselors who fail to give the “correct” religious advice to suicidal counselees would be “overly restrictive” instead of “narrowly tailored.”

What this opinion has recognized instead is that the standard of care expected of religious or secular non-therapist counselors may in appropriate circumstances require them to refer suicidal counselees to those authorized to administer medication and initiate involuntary hospitalization. This responsibility exists independent of and in addition to the religious content of the pastoral counselors' other communications with their counselees.   True, in those instances where a given religious counselor has a religious belief it is wrong for anyone to be treated by mental health professionals or to be committed to a mental health facility, we impose a burden on his religious expression by imposing financial liability if he fails to refer a suicidal counselee to this form of treatment.   But this represents a rather minor and indirect burden far less intrusive than an outright ban on religious counseling of suicidal people or a requirement the religious counseling given be that best calculated to inhibit suicide.

We find this duty not only “narrowly tailored” but actually the bare minimum required to achieve the state's compelling interest in preventing suicide among the sizeable population of mentally disturbed people who have elected to go to religious counselors rather than mental health professionals.   It is a relatively nonintrusive way of insuring members of this population who exhibit suicidal tendencies are brought to the attention of those authorized to administer medication and, where appropriate, to place suicidal individuals in facilities which can restrain them from attempting to kill themselves.   Indeed unless this duty is enforced the public policy behind California's legislative scheme for preventing imminent suicides will be frustrated in a goodly number of cases.   For these reasons, we find the duty this opinion recognizes is both “essential to accomplish an overriding governmental interest” (United States v. Lee, supra, 455 U.S. 252, 257–258, 102 S.Ct. 1051, 1055) and “the least restrictive means of achieving [that] compelling state interest.”  (Thomas v. Review Bd., Ind.Empl.Sec.Div., supra, 450 U.S. 707, 718, 101 S.Ct. 1425, 1432.)

(4) No serious contention has or could be made the legal responsibility recognized in this opinion discriminates against religion in general or against Grace Community Church in particular.   To be discriminatory against religion, it would have to apply only to religious counselors or to the pastoral counselors of this Church.   Instead we find this duty was recognized as applying to psychiatrists and psychiatric hospitals several years ago.  (See p. 225, supra.)   Today we recognize the responsibility to refer in appropriate cases extends not only to religious counselors but also to other counselors who are not licensed psychotherapists.  (See pp. 225–227, supra.)   Indeed to exempt religious counselors from this comprehensive duty to prevent suicide would represent an act of discrimination in favor of religion;  to include them, however, in no sense discriminates against religion.

 To sum up, we find California has a compelling state interest in preventing suicide which includes those mentally disordered people who have chosen to seek emotional counseling from pastoral counselors. We further find it promotes this compelling state interest to impose on all counselors, religious and secular alike, a standard of care which can in appropriate cases require them to refer in order that suicidal individuals reach those individuals and institutions society has authorized and equipped to administer medication and initiate involuntary commitments of people in danger of killing themselves.   We further find imposition of this responsibility is a means “narrowly tailored” to achieve the compelling state interest in suicide prevention at the least possible cost to religious freedom. Finally, we find this duty is not discriminatory against religion in general or against the Grace Community Church in particular.¹³  As a consequence, we hold the First Amendment would not be offended even if this duty were imposed on a religious counselor who had a religious belief suicidal individuals should not be referred to or treated by mental health professionals.

IV. NONSUIT WAS NOT WARRANTED AS TO THE CAUSE OF ACTION FOR INTENTIONAL OR RECKLESS INFLICTION OF EMOTIONAL INJURY ALLEGEDLY LEADING TO YOUNG NALLY'S SUICIDE

 The constraints of the law of the case, discussed above, prevent our considering whether the First Amendment bars this count.   However, we note the constitutional principles considered in our discussion of the negligence counts serve only to reinforce the conclusion of the Nally I decision that the First Amendment does not immunize respondents from liability for any intentional or reckless acts they may have committed which encouraged young Nally to take his own life.   Thus we turn to the question whether the trial court erred in excluding certain critical evidence and then granting the nonsuit motion as to this count on the ground of insufficiency of the evidence.

The trial court excluded an audio tape recording one of the defendants, Pastor Thomson, prepared for a series entitled “Principles of Biblical Counseling.”   This tape included the following discussion of Pastor Thomson's advice to prospective counselors on the subject of suicide.

“ ‘And the suicidal says, “I am under such tremendous pressure, now I've got to have to [sic ] pleasure of release!   Now!, I don't care about the future.”   That's characteristic of human nature.   So it is very characteristic of the suicidal that it is his fear of judgment that drives him into the death after which he will face that judgment, if he's an unbeliever.   And after which if he is a believer, he'll go to be with the Lord.   Yes, there'll be a loss of reward, but because of the Lord and his grace he'll go to be with the Lord.   In fact, suicide is one of the ways that the Lord takes home a disobedient believer.   We read that in the Bible.   That death is one of the ways that the Lord deals with us.   In the First Corinthians Eleven, verse 30 it says, “For this reason because you are not judging sin in your own life, many among you are weak and sick” and what, “a number sleep!.”  What's that mean?   They've gone to bed?   They've gone to bed for the night!   What's that mean?   Sleep?  They're dead!   That's right.   And suicide for a believer is the Lord saying, “Okay, come on home.   Can't use you anymore on earth.   If you're not going to deal with those things in your life, come on home.” ’ ”  (Italics added.)

This tape recording was the principal evidence Division One pointed to in support of its conclusion in Nally I that “a reasonable inference could be drawn that Grace Community Church and each of the individual defendants either followed a policy of counseling suicidal persons that, if one was unable to overcome one's sins, suicide was an acceptable and even a desirable alternative to living or recklessly caused such persons extreme emotional distress through their counseling methods if those persons did not measure up to the pastors' religious ideals.¹⁴

At trial after remand, the lower court took the extraordinary step of excluding under Evidence Code section 352 the very tape recording the appellate court had held sufficient to sustain a reasonable inference the defendants had intentionally inflicted emotional suffering on appellants.   In doing so, the trial court expressly found the relevancy of this recording was outweighed by the time it would consume, the danger it would unduly influence the jury and its tendency to confuse the issues and mislead the jury.

Evidence Code section 352 seldom, if ever, can justify exclusion of the principal available evidence relevant to a central issue in a case.   Its purpose instead is to facilitate the expeditious determination of truth by allowing the trial court discretion to cull out evidence which is only marginally relevant, or cumulative, or pertinent only to marginal issues, or which might distract the jury from the central issues in the case.   For this reason, the statute itself only sanctions exclusion where the probative value of the evidence is “substantially outweighed” by the probability its presentation will consume “undue” amounts of time, be “unduly” prejudicial, confuse the issues, or mislead the jury.

This audio tape actually is relevant in at least two ways.   First, it is relevant as evidence of defendants' “state of mind” while counseling the plaintiffs' suicidal young son.   Irrespective of the content of what the defendants might have said (or not said) to Kenneth Nally one of the elements of this cause of action which must be somehow proved by the plaintiffs is that the defendants counseled this young man with an intent or with reckless disregard as to whether he ended his own life.   The statements contained in the tape recording are evidence of Pastor Thomson's own personal state of mind on the question of suicide and suicide counseling and how other counselors were trained on these issues.  (For the proposition prior or future acts or declaration are admissible to prove state of mind when this fact is in issue, see Zitny v. State Bar (1966) 64 Cal.2d 787, 51 Cal.Rptr. 825, 415 P.2d 521;  Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 213 Cal.Rptr. 69;  Dinneen v. Younger (1943) 57 Cal.App.2d 200, 134 P.2d 323;  1 Witkin, Cal.Evidence (3d ed., supra ) Circumstantial Evidence, § 402.)   The fact this tape was made more than a year after the counseling sessions may go to its weight but certainly not to its admissibility.   These were expressions of permanent attitudes not transitory emotions or impressions.   Thus what is true about this attribute of one's state of mind at the present time is highly relevant on the question of this attribute of one's state of mind a year or even several years earlier.  (Cal.Evid.Code, § 1250(a)(1) [statement of declarant's state of mind at the time admissible to prove declarant's state of mind at any other time the declarant's state of mind is an issue];  see, e.g., People v. One 1948 Chevrolet Conv. Coupe (1955) 45 Cal.2d 613, 290 P.2d 538;  Whitlow v. Durst (1942) 20 Cal.2d 523, 127 P.2d 530;  Estate of Carson (1920) 184 Cal. 437, 194 P. 5;  1 Witkin, Cal.Evidence (3d ed., supra,) The Hearsay Rule, §§ 736–737.¹⁵

Secondly, the statements on the tape are relevant to prove the probable content of the counseling the defendants offered the plaintiffs' suicidal son.   The tape recordings tend to establish the customary approach the Church's counselors used when counseling suicidal individuals.   The customary approach, in turn, is relevant to prove what was said or not said in the counseling of this particular individual.  (Cal.Evid.Code, § 1105;  Brawthen v. H & R Block, Inc. (1975) 52 Cal.App.3d 139, 124 Cal.Rptr. 845 [employer's instructions to prospective managers admissible];  People v. Memro (1985) 38 Cal.3d 658, 214 Cal.Rptr. 832, 700 P.2d 446;  Dincau v. Tamayose (1982) 131 Cal.App.3d 780, 182 Cal.Rptr. 855;  1 Witkin, Cal.Evidence, (3d ed., supra,) Circumstantial Evidence, §§ 349–350, 354.) ¹⁶

The trial court sought to justify exclusion of the tape recording on grounds the “best evidence” of what was said—or not said—during the counseling sessions was the defendants' testimony as to what they indeed said at that time.   To begin with there were gaps, ambiguities and uncertainties in the defendants' testimony about these counseling sessions.   In any event, the “best evidence rule” has only to do with the admissibility of copies of original writings;  it has nothing to do with evidence of custom to prove someone acted consistent with this custom.   Such evidence does not become inadmissible or necessarily even less relevant merely because an interested witness has stated his version as to what actually happened on that occasion.   (See, e.g., In re Lopez (1970) 2 Cal.3d 141, 84 Cal.Rptr. 361, 465 P.2d 257 [trial judge's testimony he had habit of informing defendants of their rights admissible to prove he so informed a specific defendant even though the defendant gave direct testimony the judge did not inform him of his rights].)   The jury is free to disbelieve the witness' often self-serving account of what happened and to believe instead that people behaved in conformity with their customary pattern of conduct.

In any event, the trial court's rationale has no bearing whatsoever on the relevance of this tape recording as it relates to the vital element of the defendants' state of mind during these counseling sessions.   For all these reasons, we find the trial court grossly underestimated the probative value of the statements in these tape recordings.

Judicial decisions stress the “probative value” side of the equation increases not only in proportion to its logical strength in supporting a certain proposition, but along two other important dimensions as well.   First, the probative value which must be substantially outweighed increases as the proposition it tends to prove approaches—or possibly even is—one of the ultimate issues in this case, that is, one of the essential elements of a cause of action or defense.   Secondly, the probative value which must be substantially outweighed also increases the less other evidence exists to prove the proposition the piece of evidence in question tends to support.  (People v. Stanley (1967) 67 Cal.2d 812, 63 Cal.Rptr. 825, 433 P.2d 913;  Jefferson, Cal.Evidence Benchbook, (2d ed. 1982) p. 589.)

This tape recording was high on all three of these scales of “probative value.”   The appellate court already had ruled the statements on the tape are enough to support a “reasonable inference” a certain proposition is true.   This proposition—that defendants counseled appellants' son intentionally or with reckless disregard in ways that would produce his suicide—is, in turn, one of the elements of the cause of action and relates directly to another of the elements. Finally, appellants' primary witness to the counseling sessions and other tragic circumstances of this case—their son—is dead.   Consequently, this tape recording is virtually the only evidence available to appellants on the issue of the respondents' state of mind during their counseling of this suicidal individual.

Meantime, there is little to weigh against the high probative value of this evidence. Given the fact the appellate court already ruled the statements on this tape recording give rise to a “reasonable inference” about an essential element of the cause of action, it is difficult to say admission of this tape recording would “confuse the issues” or “mislead the jury.”   As to the factor of “undue prejudice,” evidence which tends reasonably to prove an essential element of a plaintiff's cause of action is, by definition, “prejudicial” to the defendant's case. Yet this is not the kind of prejudice deemed “undue” and thus grounds for exclusion under section 352.   Finally, it should not take an undue amount of time to present the tape recordings.   It does not entail calling a host of witnesses to testify at length about a whole series of transactions. Instead it only involves the authentication and playing of an audio tape.   But, in any event, evidence with this amount of probative value justifies the expenditure of almost any amount of time which may be required to present and rebut it.

 Thus balancing the high probative value of this evidence against the rather negligible costs of admitting it, we find the trial court clearly abused its discretion in excluding this tape recording under Evidence Code section 352.   Moreover, with this evidence back in the record, nonsuit is no longer appropriate on the count for intentional infliction of emotional injury.   We already have marshaled the authorities on the heavy burden a nonsuit must bear to warrant affirmance at the appellate level. (See p. 222, supra.)   In this case the burden is even greater.   For, under principles of law of the case, it already has been established this piece of evidence is sufficient to support a “reasonable inference” the defendants intentionally or with reckless disregard counseled this suicidal individual in ways which produced his suicide.   This evidence and the “pre-approved” reasonable inference based on it are all that is required to overcome a motion for nonsuit.   Only by erroneously excluding the tape recording could the trial court justify granting nonsuit on the “outrageous conduct” count of the complaint.   Accordingly, we reverse the evidentiary ruling and the nonsuit as well.

In reversing the nonsuit on the “outrageous conduct” count, we do not mean to suggest we sitting as jurors would necessarily find respondents intentionally or recklessly inflicted emotional distress which caused Kenneth Nally to kill himself. Weighing all the evidence before the trial court we might well have voted in favor of the Church and its counselors on this count.   But we are not jurors, nor is the trial judge.   Neither the trial court nor the appellate court is allowed to weigh all the evidence on a motion for nonsuit.   Instead we must consider only the evidence favorable to the opponents of the motion—in this case, the appellants—and construe that evidence most favorably to their position.   Applying this standard rigorously and considering, as he should have, the audio tapes, the trial court should have refused the nonsuit motion.   Since he did not we must reverse on this count, as well.

CONCLUSION

The dissent characterizes our majority opinion as some sort of venture in judicial “law making,” inappropriately “making policy decisions” instead of only “declar[ing] [the law] as it exists.”   We regard this as a mischaracterization of what we have done and a misconception of the role of the courts in deciding issues in the law of torts and constitutional law.

Not that we should have been surprised by such an assault.   Indeed the nation's leading treatise on tort law reports “often a dissenting opinion [is] grounded on the argument that even if ․ change ․ could be justified, it should be accomplished only by a legislature and not by a court.”  (Prosser and Keeton on Torts, (5th ed. 1984) p. 18.)   And this line of argument is fairly common even though, as Dean Prosser and his colleagues go on to point out:  “Tort law is overwhelmingly common law, developed in case-by-case decisionmaking by courts.”  (Id., at p. 19, italics added.)

As Dean Prosser and his colleagues explain:  “In earlier times the role of a court in weighing the various interests at stake and determining the rules of substantive law to be applied in resolving a case before the court was often described as one of finding applicable law, even when the decisive issue was one of first impression—that is, when the issue had not previously been decided by any court and was not governed by any statute.   Although controversy continues over theories of judicial action, under currently prevailing views it is commonly recognized that in deciding issues of first impression, in tort law as elsewhere, courts are making new law.   Courts are constrained by limitations that do not apply to lawmaking by legislatures, but where relevant legislation does not exist, courts must by necessity decide a controversy without legislative guidance.   In doing so within a common law system in which each decision is precedent, they necessarily make law.”  (Id., at p. 18, italics added.)

In the sense Prosser describes, and in that sense only, we agree with the dissent's claim we as a court are “making law” in this opinion.   The facts of the instant case presented some issues which had not been decided squarely in earlier court decisions.   Nor were there statutes to be construed which would have resolved these questions.   Thus, no law “exists” which we could “find” and “declare.”   Moreover, as is common in the field of torts, such law as was relevant to our decision emanated from the courts not the Legislature.   Both the guiding principles and the underlying policies of tort law were set down by judges not legislators over the past several centuries.   It is a little late in the game to suggest the courts have no business deciding whether certain conduct gives rise to a cause of action in tort on behalf of those harmed by that conduct.   Turning again to Prosser:  “Nor is it to be assumed that all claims of types not previously recognized have been rejected by precedent.   Thus the mere fact that a claim is novel does not defeat it.”  (Id., at p. 18, italics added.)

Actually we decided the two principal issues in this case through the most traditional and conservative methods of legal analysis.   In finding non-therapist counselors had a duty to prevent suicide we did not fashion the rule out of whole cloth or through some fundamental reassessment of public policy.   Instead we looked to existing law—the cases holding licensed psychotherapists have such a duty—and accepted the policies furthered by that existing law.   We took the tiniest of baby steps beyond those decisions and in the very direction they dictated.   To hold otherwise would have required an about face—a much bolder act of judicial “law-making” where we either questioned the rationale of the earlier cases or drew some questionable if not specious line between the facts in those cases and this one.   We did not—and had no reason to—reject prior court decisions on this issue or to distinguish some controlling legislative enactment.

As to the constitutional issue we did not assert the superiority of judicial over legislative power by declaring the “free exercise” clause precluded governmental action in this field.   Instead we took the more conservative course, ruling religious counselors could be held to the same standard of care as secular counselors when it comes to placing suicidal individuals in the hands of those the Legislature has authorized to prevent suicide.   To have held otherwise in this case would have meant the Legislature—not just the courts—would have been constitutionally foreclosed from imposing any such duty on religious counselors.¹⁷  Thus, had the California Legislature decided at some time in the future to enact a legislative scheme requiring counselors to take certain precautions against death among their suicidal counselees the lawmakers could not have embraced religious counselors within the law—no matter how much they wanted to.

Sometimes the judiciary's duty to uphold the Constitution requires us to take the drastic step of withdrawing certain matters from the permissible scope of legislative action.   On the rare occasions judges are compelled to do so they are not particularly surprised if someone condemns them for “judicial activism” or for engaging in “judicial legislation.”   This sort of criticism seems to come with the territory.   However, it is a bit unusual to find the dissent leveling a similar charge even when, as here, we decline to deny government its constitutional power to achieve its desired goals.   Evidently this, too, comes with the territory.

At the beginning of this opinion we stressed this court has not taken it upon itself to create some new, broad-gauged cause of action for “clergy malpractice.”   To the contrary, the most we have done is refuse to create a new, broad-gauged defense of “clergy immunity” for church-affiliated counselors who are treating mentally disturbed, suicidal people.   We have rejected this defense not because we have a low regard for religious freedom or the separation of church and state, but out of a profound reverence for those constitutional values—and for the value of human life.

DISPOSITION

The judgment granting nonsuit is reversed and the case remanded for further proceedings consistent with this opinion.   Appellants are awarded their costs on appeal.

I dissent.

Conceding that it ventures “along a largely uncharted path” and that no court has ruled one way or the other on the issue, the majority holds that non-therapist counselors, whether pastors or not, have a duty to refer suicidal individuals to trained psychotherapists and that failure so to do constitutes negligence.   In my view the holding simply is wrong, for a number of reasons.

I

Courts in general, and especially intermediate appellate courts, have no business making policy decisions of this nature on inadequate factual records of the sort here involved.   The courts have no power to make law, but only to declare it as it exists.¹  It is for the Legislature to enact law.   The Legislature is equipped to hold fact-finding hearings and determine the impact of proposed legislation before adopting it. We are not.

Nevertheless, the majority here purports to establish standards of conduct not just for those carrying out their religious duties at Grace Community Church, but for all persons of the cloth and, as well, for all whose professional work brings them into contact with suicidal people.   There is no way at all for us to know the extent of the impact on other such people.   There are undoubtedly many, not licensed as psychotherapists, who nevertheless have regular contact with suicidally prone persons in the course of their work.   Suicide prevention centers, teen hot-lines, and social service agencies all may be consulted in their professional capacities.   While the majority, in dictum, distinguishes services which only offer “band aid counseling,” the suggestion, implicit in the majority opinion, of potential liability of an indeterminate nature can only have a chilling effect on the giving of counseling at all.

The obligation imposed by the majority is variously, and loosely, phrased.²

As set out, some of these requirements are impossible of attainment.   The majority recognizes that the requirements come into play only when the suicidal person refuses to cooperate with a warning given to him or her by the counselor to consult with a psychotherapist voluntarily.   So recalcitrance is indicated at the outset of the “duty” imposed.   I fail to see how a counselee can be compelled to consult a psychiatrist or other licensed psychotherapist. While Kenneth Nally, the central figure of this tragic drama, is referred to as “young” (and was in fact young from the perspective of most of us), he was 24 at the time of his death and was an adult throughout all the time he had any connection at all with Grace Cathedral counselors. Short of an involuntary commitment by force of law, he simply could not have been compelled by anyone to see a licensed psychotherapist.

Apart from this, there is no legal obligation on anyone, including doctors, to take affirmative steps to prevent one who is not a patient from committing suicide.   A doctor to whom a referral might be made by the counselor may well reject the referral. And, under applicable statutes such as the Lanterman-Petris-Short Act ³ a person “may” but is not required to institute proceedings seeking an involuntary commitment.   If the majority means that a counselor must institute proceedings under the Act then, of course, it is rewriting the statute, a matter which I would have thought was for the Legislature.

Apart from this, who is the pastor or other counselor to call?   If the suicidal person has a licensed psychotherapist presumably that doctor would be contacted. But the doctor, in turn, can do no more than wait for the counselee to come in, short of starting involuntary proceedings. If the counselee has no licensed psychotherapist, the pastor's obligation, as created by the majority is very difficult.   Contacting a doctor who does not know the counselee and who has had no relationship with that person is futile, unless the counselee agrees to see the doctor.   Each question asked about the extent of the duty spawns ten others.

No existing California decision compels the imposition of a duty to refer potential suicide victims to licensed professionals, or to warn parents or others of the person's danger.   It is ironic that the majority builds its argument on cases ⁴ which culminate in a holding that licensed medical professionals have no obligation to disclose to third parties “vague or even specific manifestations of suicidal tendencies on the part of the patient who is being treated in an outpatient setting.” ⁵  Thus the essence of the duty imposed by the majority is to require the disclosures which existing law has declined to require.   For all of these reasons, alone, it is improper to hold that plaintiffs proved enough to get beyond the nonsuit motion.   There are other reasons, as well, the principal one of which is the First Amendment.

II

Entirely apart from any other reasons why the majority incorrectly holds that potential liability can exist on the part of defendants, familiar First Amendment principles clearly stand in the way of liability.   I have no quarrel with the professorial and exegetic discussion of the Amendment, undertaken in the abstract by the majority.   But, the application of the Amendment to the facts of this case ignores the record and in particular ignores the fact that to reach their conclusion the majority must end up by preferring the ecclesiastic views of some of the defendants (and indeed of some religious commentators) to those of at least one of the defendants.

In the first place, the opinion states that the duty to refer and inform does not impose any burden on the free exercise of religion on Grace Community Church's counselors “because this duty is not inconsistent with their religious beliefs.”   Yet, Mr. Thomson, one of the defendant pastors, testified to religious beliefs that make it clear that he would not, for theological reasons, refer a counselee to a psychiatrist or psychologist except in the most limited circumstances.⁶  Other defendants testified that they had no particular religious concern about such referrals.   Thus, the majority's imposed obligation of referral to those who by education and experience are in the best position to prevent a potential suicide from killing himself would directly impinge on Mr. Thomson's beliefs.   It would pick and choose between those beliefs and the beliefs of others.   By ordering conduct consistent with the view of the other defendants, it rejects Mr. Thomson's views as insufficient to accomplish the pastoral purpose of helping suicidal individuals.   It seemingly rejects his testimony that the Bible gives the root answer to why emotional or psychiatric problems exist.   It also ignores the fact that a counselee himself might have firm religious convictions committing him or her, as an individual, to the views of someone such as Mr. Thomson.   In effect, the majority has found one set of views to be false or not adequate, something which it may not do.  (United States v. Ballard (1944) 322 U.S. 78, 86–87, 64 S.Ct. 882, 886–887, 88 L.Ed. 1144.)  “[I]t is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment.”  (Fowler v. Rhode Island (1953) 345 U.S. 67, 70, 73 S.Ct. 526, 527, 97 L.Ed. 828.)   It violates the amendment when courts pick and choose between one religious view and another.  (Id., at p. 69, 73 S.Ct. at p. 527.)  “․ Nor is it in the competence of courts under our constitutional scheme to approve, disapprove, classify, regulate, or in any manner control sermons delivered at religious meetings.   Sermons are as much a part of a religious service as prayers.   They cover a wide range and have as great a diversity as the Bible or other Holy Book from which they commonly take their texts.   To call the words which one minister speaks to his congregation a sermon, immune from regulation, and the words of another minister an address, subject to regulation, is merely an indirect way of preferring one religion over another.   That would be precisely the effect here if we affirmed this conviction in the face of the concession made during oral argument.   Baptist, Methodist, Presbyterian, or Episcopal ministers, Catholic priests, Moslem mullahs, Buddhist monks could all preach to their congregations in Pawtucket's parks with impunity.   But the hand of the law would be laid on the shoulder of a minister of this unpopular group for performing the same function.”  (Id., at p. 70, 73 S.Ct. at p. 527.)   In the present case one of plaintiffs' own expert witnesses when asked, “where does spirituality leave off and psychology begin?” stated, “Well, I don't think Jesus Christ would touch that one․  There's no answer to such a question.   They are intermingled.”

In the second place, the burdens placed upon religion by the majority do not meet at least one, if not more, of the criteria stated as necessary to be met in curtailing expressions of belief on the theory that an important state interest must be protected.   Thus, United States v. Lee (1981) 455 U.S. 252, 257–258, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127, held “The State may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”   But, as shown above in discussing the duty to refer, there is no showing that this duty is “essential” because there is great doubt that it would work at all, short, at least, of also making mandatory the involuntary confinement of all potentially suicidally inclined persons.⁷

In the third place, recognizing that in limited circumstances conduct in the name of religion may be regulated even though beliefs, as such, may not be suppressed, here the majority compels action, while transgressing belief.   The difference is crucial, and is well illustrated in Reynolds v. United States (1878) 98 U.S. (8 Otto) 145, 163, 25 L.Ed. 244.   There, a unanimous court found that polygamy was offensive in Anglo-American and European nations, that there were explicit criminal statutes forbidding the practice, and that one such statute, enacted by Congress, did not transgress the First Amendment in light of the historical purpose of the Amendment, even though members of the Mormon Church had embraced polygamy as one of their beliefs.   In looking at the history of the events which led to the Amendment, the court quoted a Virginia statute which had been drafted by Thomas Jefferson (12 Hening's Stat. 84) noting that, “after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’ ․”  The Supreme Court then said, “In these two sentences is found the true distinction between what properly belongs to the church and what to the State.”  (Reynolds v. United States (1878) 98 U.S. (8 Otto) at p. 163, italics added.)   In the present case, no principles have broken out into overt acts against the public peace or good order.⁸  Instead, the majority form the opinion that because suicide ought to be prevented it is up to them to determine how to do that, because of what the majority concludes to be “the ill tendency” of defendants' religious counseling.  “․ The test for upholding a direct burden on religious practices is as stringent as any imposed under our Constitution.   Only in extreme and unusual cases has the imposition of a direct burden on religion been upheld․”  (Paul v. Watchtower, etc., Society (9th Cir.1987) 819 F.2d 875.)   The danger must be grave and immediate.  (People v. Woody (1964) 61 Cal.2d 716, 719, fn. 2, 40 Cal.Rptr. 69, 394 P.2d 813.)   The present case is not of that character.

While much more could be said on the subject, the fact that this is a dissent, and the hope that the majority's view ultimately will not prevail make it unnecessary and unwise to extend this opinion on this subject.

III

The majority holds that it was error for the trial court to exclude, under Evidence Code section 352 (section 352), the contents of a tape recording, and that the recording would help plaintiffs establish a cause of action for intentional or reckless infliction of emotional injury.   The majority is in error, in my opinion.

In 1981, Mr. Thomson taught a series of classes on the subject of Biblical counseling.   The classes included question and answer sessions.   Tape recordings were made of these classes.   During one of them, a student asked a question concerning whether a person who committed suicide could be saved.   Pastor Thomson gave an extemporaneous answer to the question which reflected the pastor's own religious beliefs.⁹  This included the statement quoted by the court in Nally I.   Plaintiffs unsuccessfully sought to introduce this tape recording, along with others.   Their contention was that it provided inferential proof of what Pastor Thomson might have said to Kenneth Nally during the three counseling sessions that Mr. Thomson had with Kenneth in early 1979.

The trial court held two extended hearings on the admissibility of the recordings.   Mr. Thomson testified at each of these sessions.   His testimony was that he did not remember precisely what he told Kenneth during the counseling sessions, but that it would have been different than the religious beliefs expressed to the students in the Biblical counseling class.   He remembered that Kenneth had asked one question as to whether a person who committed suicide could be saved.   The thrust of his answer was that one who had accepted Christ was saved from past, present and future sins, but that it would be wrong to commit suicide.

The trial court sharply questioned counsel concerning the admissibility of the tapes in general (no issue is made on appeal as to the tapes other than the particular one quoted in footnote 9), and the statement made during the class on Biblical counseling in particular.   The court was concerned with the relevancy of the tapes.   It pointed out that constitutional principles precluded inquiry into the beliefs of the church.   Plaintiffs' counsel argued at length that plaintiffs were trying to prove that the church had a belief against psychiatry and psychology, and that if the tape dealing with suicide was in evidence, it would be argued by plaintiffs that it showed outrageous conduct.   Counsel continued to maintain that it was necessary to put the church's beliefs into evidence in order to show its conduct.

The court then pointed out that the way to establish what Pastor Thomson said to Kenneth in 1979 was to ask the questions directly.   After further argument, the court delineated the issues in the case ¹⁰ and pointed out that the court was not called upon to establish duties for pastoral counselors.   The court then ruled that it would not admit the tape concerning suicide “on the basis that its relevancy is such that it would necessitate the undue consumption of time, would create substantial danger of undue influence to the jury and could confuse the issues and be misleading to the jury.”

Section 352 provides that “the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”   As in all cases where discretion is called for, it may not be exercised arbitrarily.   A balancing process is called for which requires consideration of the relationship between the evidence and the relevant inferences to be drawn from it.  (Kessler v. Gray (1978) 77 Cal.App.3d 284, 291, 143 Cal.Rptr. 496.)   Evidence which merely encourages speculation should be excluded in civil cases just as well as criminal cases.   (People v. Bush (1978) 84 Cal.App.3d 294, 307, 148 Cal.Rptr. 430;  Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 425, 94 Cal.Rptr. 49.)

The question of remoteness of evidence is left to the sound discretion of the trial judge.  (Mathews v. Dudley (1931) 212 Cal. 58, 60, 297 P. 544;  Jennings v. Arata (1948) 83 Cal.App.2d 143, 146, 188 P.2d 298.)   For example, in Atkins v. Bisigier, supra, evidence was offered to show that on a day one month after the accident at issue, the water in a swimming pool was cloudy.   This was offered to prove the probable condition of the water at the time of the accident and to impeach testimony that the pool was always clean.   The trial court excluded the evidence, and the appellate court affirmed pointing out that the evidence had been rejected as too remote and speculative and that the trial court had not abused its discretion.

“[T]he question of remoteness is one which rests so largely in the discretion of the trial court that no positive rule can be laid down, and for that reason the ruling of the trial judge as to the admission or rejection of evidence of this character will not be disturbed except upon a clear showing of an abuse of such discretion.”  (Larson v. Solbakken (1963) 221 Cal.App.2d 410, 421, 34 Cal.Rptr. 450.)   So, here, what was said in an extemporaneous answer, which did not precisely reflect the thoughts of Pastor Thomson, given almost two years after the incident at issue is at best marginally relevant to prove what was said at the time in question.   The trial judge made a carefully considered decision after considerable deliberation.   The evidence was remote from the events at issue.   Clearly, there was a basis for the trial court's ruling that admission of the tape created substantial danger of misleading the jury and prejudicing the defendants.   No error occurred and the majority's conclusion to the contrary is not persuasive.

The law of the case doctrine does not mean that the trial court had to allow the challenged tape into evidence.   The mere fact that it was referred to in Nally I did not magically insulate it from challenge under section 352.   Since the prior opinion involved an appeal from a summary judgment, there had been no need nor basis for seeking a ruling under that section.  “The doctrine of the law of the case ․ does not extend to the facts or to points of law which might have been but were not presented and determined on a prior appeal.”  (Steelduct Co. v. Henger-Seltzer Co., supra, 26 Cal.2d 634, 644, 160 P.2d 804.)   The admissibility of the tape was neither argued nor discussed in the trial court prior to the last appeal or in connection with the appeal.   It cannot be said that it was necessarily determined and thus impliedly became part of the law of the case (id., at p. 642, 160 P.2d 804) since the tape was only part of the evidence, which in the opinion of the majority in Nally I prevented the entry of summary judgment.

Further, at the trial, following the decision in Nally I, it was never argued by plaintiffs that law of the case principles compelled the admission of the evidence.   If an opponent of evidence can be said to have waived an objection to the evidence by not raising the point prior to a first appeal (Davis v. Edmonds (1933) 218 Cal. 355, 359) and thus become bound by an implied determination, then certainly a proponent of that evidence may waive the application of the policy which finds expression as a mere rule of practice in the law of the case doctrine.  (England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 97 P.2d 813;  9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 741, p. 710.)

IV

One more matter deserves brief mention.   Upon granting the motion for nonsuit, the trial court observed that even if all of plaintiffs' evidence, including the proferred tape recording, was considered, plaintiff still had not proved that any conduct of defendants caused Kenneth Nally's death.   Defendants are correct in suggesting that to find causation a jury would have had, first, to infer that suicide was a concept religiously acceptable to Grace Community Church.   Next, it would have had to make the not entirely logical assumption that because Mr. Thomson made the statements on the tape recording he expressed the same idea to Nally more than one and one-half years earlier.   Then, the jury would have to infer that because of those comments Nally committed suicide.   This is far too tenuous a factual path to support a judgment.

I would affirm the judgment of the trial court.   It was right the first time when it granted summary judgment;  it clearly was correct the second time when it granted the motion for nonsuit.   There should be no third time.

FOOTNOTES

1.   The notice of appeal states that plaintiffs appeal “from the judgment entered May 24, 1985.”   The record on appeal contains no document labeled “judgment.”   It does contain a document entitled “Order for Judgment of Non-Suit” signed by the court and filed on May 24, 1985.   The order refers to defendants' motion for nonsuit and states, “IT IS ORDERED, ADJUDGED, and DECREED, that ․ the Plaintiffs take nothing by the Complaint herein on file, that this Order shall operate as an adjudication on the merits, and that Defendants recover from Plaintiffs their costs․”A determination, though characterized as an “order” may be in effect a final judgment for the purpose of appeal.  (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 3, p. 454.)  “There is no prescribed form for a judgment.   Its sufficiency depends upon whether it shows distinctly that the issues have been adjudicated.”  (7 Witkin, Cal. Procedure, supra, Judgment, § 30, p. 472.)   The order for entry of judgment here involved is thus sufficient and, accordingly, we treat it as the final appealable judgment.

2.   We take judicial notice of the prior appeal file and the opinion therein rendered (Nally v. Grace Community Church, 2 Civ. No. 67200.)   Although the Supreme Court ordered that the opinion not be published in the Official Reports, thereby precluding its citation for precedential purposes (Cal.Rules of Court, rule 977), it still must be considered for application of the law of the case doctrine.  (Ibid.)

3.   See, e.g., the following books and articles, most of which touch upon the issue of whether a cause of action can be stated as well as the constitutional issues.   Malony, Needham & Southard, Clergy Malpractice (1986);  Augspurger, Legal Concerns of the Pastoral Counselor (1980) 29 Pastoral Psychology 109;  Bergman, Is the Cloth Unraveling?   A First Look at Clergy Malpractice (1981) 9 San Fernando Val.L.Rev. 47;  Berstein, A Potential Peril of Pastoral Care:  Malpractice, (1980) 19 J. Religion & Health 48;  Breecher, Ministerial Malpractice:  Is It A Reasonable Fear? (July 1980) 16 Trial 11;  Ericsson, Clergyman Malpractice:  Ramifications of a New Theory (1981) 16 Val.U.L.Rev. 163;  McMenamin, Clergy Malpractice, (Sept.-Oct. 1985) 90 Case & Comm. 3;  Note, Intentional Infliction of Emotional Distress by Spiritual Counselors:  Can Outrageous Conduct Be “Free Exercise?” (1986) 84 Mich.L.Rev. 1296;  Note, Seeing in a Mirror Dimly?  Clergy Malpractice as a Cause of Action:  Nally v. Grace Community Church, (1986) 15 Cap.U.L.Rev. 349;  Case Note, Religious Counseling—Parents Allowed to Pursue Suit Against Church and Clergy for Son's Suicide (1985) Ariz. St.L.J. 213;  Comment, Made Out of Whole Cloth?   A Constitutional Analysis of the Clergy Malpractice Concept (1983) 19 Cal.Western L.Rev. 507.

4.   The term “nontherapist counselor” is used throughout this opinion to refer to counselors other than psychiatrists, clinical psychologists, or other categories of psychotherapists, who hold themselves out as capable of assisting mentally disturbed people.

5.   In an analogous context, we note the Ninth Circuit has held a public school may have a duty in tort to take adequate precautions to prevent suicide when it is apparent one of those students is suicidal.   (Kelson v. City of Springfield (1985) 767 F.2d 651.)   In this case, a student brandished a revolver and threatened suicide.   The school authorities took some steps but not others in an attempt to deal with him.   A few minutes later the boy shot himself.   The parents sued alleging the school had been negligent, especially in failing to provide personnel adequately trained in suicide prevention.   The trial court dismissed the complaint, but the Ninth Circuit reversed.  “The Kelsons' complaint contains no allegation that the deprivation of their liberty interest resulted from the execution of an official public policy, custom or practice.   The complaint does, however, contain allegations that [the school] had a duty to provide suicide training to [its] employees, and that it failed to do so.”  (767 F.2d at p. 656.)A public school undertakes to educate the members of its student body.   If that undertaking is enough to require the school to take adequate precautions when one of those many students exhibits suicidal tendencies, a fortiori, a counselor of mentally disturbed people has that duty where he has undertaken to counsel with people about the very mental condition which can lead to suicide.

6.   For a discussion of the statutory scheme which authorizes certain mental health professionals and others to initiate involuntary hospitalization of suicidal persons, see page 234, infra.

7.   With respect to religious counselors there may also be reasons grounded in the Constitution for limiting their liability to the failure to refer (and where necessary, to warn).   To inquire into the content of their counseling and whether what these religious counselors said to a suicidal counselee was reasonably calculated to prevent suicide may impinge on their right to “free exercise” of religion.  (See pp. 235–236, infra.)

8.   “Ethical therapists do not employ diagnostic or treatment procedures that are beyond the scope of their training, nor do they accept clients whose personal functioning is seriously impaired, unless they are qualified to work with those clients.   A therapist who becomes aware of his or her lack of competence in a particular case has the responsibility ․ to make a referral.”  (Corey, Theory and Practice of Counseling and Psychotherapy (1977) 213, 216;  italics added.)

9.   All discussion in this opinion as to the freedom of religion provisions of the U.S. Constitution applies also to respondent's claims under Article I, section 4 of the California Constitution which guarantees “[f]ree exercise and enjoyment of religion without discrimination or preference”.

10.   The dissent quotes extensively from this counselor's testimony (Dissent, pp. 244–245, fn. 6, infra ) and construes it to prove he holds a religious belief against referring a counselee to a secular counselor.   Actually his testimony is ambiguous at best.   Even if a reasonable judge or juror could construe what this counselor said as expressing a true religious belief, it is at least equally possible for a reasonable judge or juror to construe it as only stating a personal preference or philosophy.   The counselor never asserts it is against his religion to refer a counselee to a secular psychiatrist.   Rather he describes what he “would” do “generally.”   In any event, he concedes he would have no compunctions—religious or personal—about referring a counselee to a “psychiatrist [who is] coming from the viewpoint consistent with the scripture.”   Accordingly, it is clear even this counselor has no objections—religious or personal—which would have prevented him from referring Nally to at least one subgroup of professionals who are authorized to administer medication and initiate involuntary hospitalization, that is, psychotherapists who have a Christian orientation.   It follows his failure to do so cannot be immunized from liability on “free exercise” grounds.

11.   This statutory scheme provides:“When any person, as a result of mental disorder, is a danger to others or to himself or herself, ․ a peace officer, member of the attending staff ․ of an evaluation facility ․ designated members of a mobile crisis team ․ or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility ․ for 72–hour treatment and evaluation․”  (Cal.Welf. & Inst.Code, § 5150.)“․ The person shall be released before 72 hours have elapsed only if, the psychiatrist directly responsible for the person's treatment believes, as a result of his or her personal observations, that the person no longer requires evaluation or treatment․”  (Cal.Welf. & Inst.Code, § 5152.)The medical staff can extend this 72–hour period for another fourteen days.  (Cal.Welf. & Inst.Code, §§ 5250, et seq.)   After a court hearing, a suicidal individual can be held for fourteen more days.   (Cal.Welf. & Inst.Code, §§ 5260, et seq.)

12.   Since we decide pastoral counselors have a duty to prevent suicide we need not address the issue whether exempting religious counselors from this duty would violate the “establishment of religion” clause of the First Amendment. This clause generally proscribes discriminatory treatment which favors religion unless the discrimination has a secular purpose and effect. (See p. 230, supra, and cases cited therein.)   Here an exemption for religious counselors actually would impede rather than further a compelling secular interest.   Accordingly, it would appear to raise serious constitutional problems.

13.   United States v. Ballard, 322 U.S. 78, 64 S.Ct. 882, 88 L.Ed.2d 1148, upon which respondents place so much reliance, is not inconsistent with the principles discussed above.   This case involved a mail fraud prosecution which required the government to prove the church's beliefs were false and would have sent the defendants to jail because they entertained those false beliefs.   The Supreme Court ruled it would violate the free exercise clause for the government to judge the truth or falsity of religious doctrine.   In contrast, the instant civil action does not entail proof the Grace Community Church's beliefs or those of their pastoral counselors are false.   Instead it requires proof they could foresee young Nally was suicidal and, consistent or inconsistent with their beliefs about the proper remedy, failed to refer him to persons and institutions which are specially authorized and equipped to prevent suicide.   It is as if, having discovered a fire, a night watchman only chanted “Fire, fire go away, come again some other day” rather than calling the fire department.   It would be irrelevant whether the watchman failed to call the fire department out of laziness or plain orneriness or because he subscribed to a religion which believed the best way to put out fires is to chant “Fire, fire go away, come again some other day.”   If he had a duty of due care to prevent the spread of the fire or specifically to call the fire department he could hardly claim immunity from liability because his breach may have been prompted by religious belief.   Nor would the subsequent lawsuit and trial constitute an undue interference with the watchman's right to free exercise of his religion.

14.   We emphasize the content of the religious counseling given Nally is not relevant to the negligence claim which is based on the counselors' failure to live up to their independent, affirmative responsibility to refer Nally to those authorized and best suited to prevent his imminent suicide.   The content of the religious counseling is relevant, however, to the second alternative theory of the “outrageous conduct” or “intentional infliction of emotional injury” count as outlined in the above passage from Nally I.   According to Nally I, once the counseling is done with an intent to encourage suicide or with a reckless disregard of whether it will lead to suicide the counselors' “free exercise” rights are no longer sufficient to preclude a thorough inquiry into whether what they told this suicidal individual was likely to cause him to take his own life.

15.   As to the hearsay as opposed to the relevance issue, certain of the statements on the tape recording could be construed as circumstantial evidence rather than direct evidence about the state of mind with which respondents counseled Nally.   As such they would be admissible as non-hearsay instead of under the state of mind exception to the hearsay rule.   (1 Witkin, Cal.Evidence, (3d ed., supra,) The Hearsay Rule, §§ 593–594.)

16.   It also is arguable these statements may be properly construed as statements of intent as to what should be and is said to suicidal individuals.   Statements of intent, in turn, are admissible to prove actions were taken consistent with that intent.  (Cal.Evid.Code, § 1250(a)(2) [statement of declarant's state of mind at the time admissible to prove the declarant's conduct then or at some other time.]   True, these statements were recorded more than a year after the counseling sessions.   But they purport to be statements of permanent and ongoing intent.   Moreover, they do not purport to be statements only of what should be done in the future, but rather what should have been done in the past as well.   The typical use of this exception has been to admit statements of intention to do some future act as evidence the act was done.  (1 Witkin, Cal.Evidence (3d ed., supra,) The Hearsay Rule, §§ 752–756.)   The statutory language is not so limited, however.   Conceivably it could be stretched to cover this evidence.   Nonetheless, since the tape recordings are relevant on other grounds we need not address this issue and decline to do so.

17.   Holding the “free exercise clause” immunizes religious counselors from any legal duty to do anything about their counselee's statements or behavior would have other serious consequences.   Imagine a counselee had told one of the Church's counselors he intended to kill a specific person as soon as he could and showed the counselor the gun which he intended to use.   Further, assume the counselor had every reason to believe what he was being told.   The counselor says nothing to the police or to the intended murder victim.   The counselee then takes the gun and kills his intended target.   Are we really prepared to say the “free exercise clause” bars a lawsuit against the Church counselor for failing to warn the target or to take other reasonable precautions to prevent the murder even though a psychiatrist would be liable for a similar failure?   We think not.   Yet the broad scope of the “free exercise” immunity urged by the dissent appears to preclude a lawsuit against a religious counselor whether his inaction leads to murder or to suicide.

1.   16 Am.Jur.2d 843, (1979) Const.Law § 316.

2.   “To refer counselees to those who possess these powers to prevent an imminent suicide” (majority opn. p. 226);  “to refer ․ to those individuals or institutions authorized and specially suited to prevent suicide” (majority opn. p. 227);  “to take appropriate precautions should [a counselee] exhibit suicidal tendencies” (majority opn. p. 227);  “to take steps to place [a suicidal person] in the hands of those to whom society has given the authority and who by education and experience are in the best position to prevent the suicidal individual from succeeding in killing himself” (majority opn. p. 227);  “informing those in a position to prevent the counselee's suicide about the factors suggesting the counselee's imminent plans to kill himself” (majority opn. p. 227);  “duty to place their suicidal counselees in the hands of those best able to prevent these counselees from killing themselves” (majority opn. p. 229);  “to insure their counselees also are under the care of psychotherapists, psychiatric facilities, or others authorized and equipped to forestall imminent suicide” (ibid., italics added);  “a duty to take appropriate measures to prevent Nally's suicide” (ibid.).   In some places the duty is made more amorphous by leaving it to a jury to determine the extent of the obligation (majority opn. p. 229).

3.   Welfare and Institutions Code, section 5000 et seq.   See especially, section 5150 and section 5201.

4.   Vistica v. Presbyterian Hospital (1967) 67 Cal.2d 465, 62 Cal.Rptr. 577, 432 P.2d 193, and Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 71 Cal.Rptr. 903, 445 P.2d 519, each held that a cause of action for wrongful death would lie where a hospital was negligent in not taking steps to prevent the suicide of an institutionalized patient, and Meier also extended liability to the treating doctor.  Bellah v. Greenson (1978) 81 Cal.App.3d 614, 146 Cal.Rptr. 535, held that a psychiatrist might be held liable in negligence for failing to personally take measures to prevent the suicide of a woman under his care.   The same decision, however, explicitly refused to hold that there was a duty on the part of the doctor to warn the woman's parents of their daughter's condition.

5.   (Bellah v. Greenson, supra, 81 Cal.App.3d at pp. 620–622, 146 Cal.Rptr. 535.)

6.   The testimony was as follows:“Q ․ [¶] Is there anything in your religion that says it's wrong for a person to see a psychologist or psychiatrist who might use medication to help depression?A I think there are two questions there.Q Let me limit it to psychiatrists then.A I'm not talking about that.  [¶] In my understanding a psychiatrist is one who has a world view from which he counsels as well as he is a medical doctor.  [¶] I like to differentiate the two because I believe that the emotional problems that are not physically caused are spiritual problems, and so to have the medication come from a doctor who is not necessarily going to counsel from a particular world view, I like to differentiate those two.Q Between the medical doctor and the psychiatrist?A Unless that particular world view is consistent with the scripture.Q Excuse me.  [¶] You are differentiating between a medical doctor and a psychiatrist;  is that right?A Well, I may be in error, but in my understanding the psychiatrist is the counselor plus the medical doctor whereas the medical doctor or the practitioner or whatever you want to call him would not have the psychological world view that I would be coming from and counseling with regard to.Q Yes, and that's the distinction you are making between medical doctor and the psychiatrist?A And so for a person to have medication prescribed from whomever, I don't see a problem with that.Q Even if it's a psychiatrist?A That's true.Q To make sure we're on the right track then, Pastor Thomson, your religion, your theology, sees no problem with the simple fact that a psychiatrist would use medication in treating someone's severe depression?A That's true.   When I would refer, however, I would refer to a medical doctor.Q Not a psychiatrist?A Generally unless I believed that psychiatrist were coming from the viewpoint consistent with the scripture.Q And so when you make a referral, you make a referral to a medical doctor who is not a psychiatrist for that exact reason?A Unless I know that the psychiatrist is coming from a viewpoint which I know of and consider as consistent with God's word, yes.”

7.   While there clearly is a state interest that its citizens not commit suicide, the strength of that interest is diluted, to say the least, by statutory recognition that even in the context of mentally disordered people (among whom may be included suicidal individuals) lay medicine must give way to the practice of religious beliefs.   Thus, Welfare and Institutions Code section 5006, part of the Lanterman-Petris-Short Act, states that the act “shall not be construed to deny treatment by spiritual means through prayer in accordance with the tenets and practices of a recognized church or denomination for any person detained for evaluation or treatment who desires such treatment․”  And section 7104 of the same code, states with reference to county psychiatric hospitals:  “Any adult person detained in such hospital, who is in such condition of mind as to render him competent to make such application shall at his request be exempt from medical or psychiatric treatment, upon filing with the superintendent a statement that he depends upon prayer or spiritual means for healing in the practice of the religion of a well-recognized religious church, sect, denomination, or organization.   In case of an adult not found to be in such condition of mind, a similar statement may be filed on his behalf by another and thereupon similar exemption shall be granted․”Numerous other statutes, dealing with the licensing of health care professionals, and the conduct of medically related schools exempt or limit the regulation of religious practices.   E.g., Business and Professions Code sections 1000–1000–16 (chiropractic);  2063 (medicine);  2731, 2789 and 2800 (nursing);  2863 (vocational nursing);  2908 (psychologists);  and 4508 (psychiatric technicians).

8.   While based on statutory grounds, Northrup v. Superior Court (1987) 192 Cal.App.3d 276, 237 Cal.Rptr. 255, illustrates that the State of California does subordinate interests in the lives of its citizens to religious principles.   In the case, unlicensed midwives did not call in the services of medical professionals.   Instead, consonant with the principles of their religion which precluded reference to physicians, they presided at three childbirths, in two of which the babies were stillborn.   The court struck down a criminal prosecution for practicing without a license, noting that section 2063 of the Business and Professions Code squarely exempted the midwives from being licensed.

9.   “Suicide is one of the ways that the Lord takes home a disobedient believer․  Suicide for a believer is the Lord saying, ‘Okay, come on home.   Can't use you anymore on earth.   If you're not going to deal with those things in your life, come on home.’ ”

10.   “THE COURT:  ․ One, that as counselors, the defendants—did the defendants have an obligation to recognize severe depression and/or suicidal tendencies, if they existed in Ken Nally.  [¶] Two, did they—if they did recognize such severe depression or suicidal tendencies, did they have the duty to refer Ken Nally to a psychiatrist, a psychologist or some other professional in the field.  [¶] Three, again assuming they recognized the severe depression or the suicidal tendency, did they have a duty to give that information to his parents so that they might take the appropriate action?  [¶] Further, did they have a duty to, if they received information, that is Pastor Rea in the hospital about a possible subsequent suicide attempt, did they have an obligation to turn that over to the treating physicians and deliver that information?  [¶] Finally, was there outrageous conduct on the part of the church and the counselors which might have pushed Nally towards suicide or inevitably to his suicide?”

JOHNSON, Associate Justice.

THOMPSON, Acting P.J., concurs.