Mary Givens v. St. Adalbert Church et al. (2013)

MEMORANDUM OF DECISION RE DEFENDANT NORWICH ROMAN CATHOLIC DIOCESAN CORPORATION'S MOTION TO DISMISS (# 119)

Before the court is a motion to dismiss based on subject matter jurisdiction made by the defendant, The Norwich Roman Catholic Diocesan Corporation (hereinafter “NRCD”).  For the reasons set forth below, the motion is granted in part, and denied in part.

I. FACTS AND PROCEDURAL BACKGROUND

The November 20, 2012 amended complaint is in eight counts.   The plaintiff alleges that during the 1978–1979 school year she was sexually assaulted by Father John Ramsey, a priest of the Norwich Diocese who was teaching CCD at St. Adalbert Church in the Archdiocese of Hartford.   For purposes of the motion to dismiss, the court assumes the factual allegations of the complaint to be true.   The complaint is brought against NRCD and against The Hartford Roman Catholic Diocesan Corporation (hereinafter “HRCD”) and St. Adalbert Church Corporation (hereinafter “SACC”).¹

The Third, Sixth Count are brought against NRCD and allege, respectively, negligence and negligent hiring, retention and supervision.   NRCD has moved the court to dismiss both the Third and Sixth Counts of the complaint, asserting that the court's adjudication of the common-law negligence and negligent supervision, retention and supervision claims would result in “excessive entanglement” of the court in matters of religion and the internal governance and procedures of a religious institution, in violation of the first amendment of the United States Constitution and Article First, § 3 of the Connecticut Constitution.

More specifically, NRCD argues that the “ministerial exception,” as adopted and discussed by the U.S. Supreme Court in Hosanna–Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, and the Connecticut Supreme Court in Dayner v. Archdiocese of Hartford, 301 Conn. 759, 769, 23 A.3d 1192 (2011), bars the resolution of any claims relating to a religious institution's internal governance and procedures, and its employment relationship with and employment decisions relating to its employees.   Also, the Connecticut Appellate Court's interpretation of General Statutes § 52–571b in Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn.App. 646, 662, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51 (2007), cert. denied, 552 U.S. 886, 128 S.Ct. 206, 169 L.Ed.2d 144 (2007), lends additional support to the defendant's position that employment decisions and practices of a religious institution are “religious beliefs” over which this court does not have subject matter jurisdiction.   Finally, NRCD argues that the reasoning that has been employed by other trial courts in cases such as these, i.e., that “neutral principles of tort law” may be applied to determine a plaintiff's tort claims against a religious institution, is inconsistent with first amendment jurisprudence and, in light of recent decisions such as Dayner v. Archdiocese of Hartford, supra, and Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010), may no longer have persuasive force.

II. STANDARD OF REVIEW

A. Motions to Dismiss Based on Subject Matter Jurisdiction

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Housatonic Railroad Co. v Commissioner of Revenue Services, 301 Conn. 268, 274, 21 A.3d 759 (2011).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2012).

“When a [trial] court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”   (Citation omitted;  internal quotation marks omitted.)  Lagassey v. State, 268 Conn 723, 736, 846 A.2d 831 (2004).

“[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).   Nevertheless, “the well established notion [is] that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)   Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).

B. Freedom of Religion—Constitutional and Statutory Protections

1. First Amendment

“The first amendment to the United States constitution protects religious institutions from governmental interference with their free exercise of religion.”  (Internal quotation marks omitted.)  Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 670–71, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010).   However, The United States Supreme Court has consistently held that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”  (Internal quotation marks omitted.)  Employment Division, Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).

“The constitution, however, does not immunize every church action from juridical review.  [N]ot every civil court decision ․ jeopardizes values protected by the [f]irst [a]mendment.  [C]hurches, their congregations and hierarchy exist and function within the civil community ․ [and] it is acknowledged that they are as amenable as other societal entities to rules governing property rights, torts and criminal conduct ․ If a court can resolve the dispute by applying only neutral principles of law, however, judicial review may be permissible ․ But the exception in cases where neutral principles of law may apply ought not swallow the first amendment rule:  where conduct is prima facie protected by the first amendment, a party seeking secular court jurisdiction bears a burden to show that the controversy in issue is outside the constitutional bar.”  (Citations omitted;  internal quotation marks omitted.)  Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 671–75.

2. General Statutes § 52–571b

Connecticut General Statutes § 52–571b articulates the standard necessary to justify an action of the state or a political subdivision which will burden a person's exercise of religion.   Our state Supreme Court has explained that “ § 52–571b was enacted in response to the United States Supreme Court's decision in Employment Division, Dept. of Human Resources v. Smith, [494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) ], in which the court held that a generally applicable prohibition against socially harmful conduct does not violate the free exercise clause, regardless of whether the law burdens religious exercise ․ [T]he purpose of § 52–571b was to restore the balancing standard, articulated by the United States Supreme Court in Sherbert v. Verner, [374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) ], under which a law that burdens religious exercise must be justified by a compelling governmental interest.”  (Citations omitted.)  Cambodian Buddhist Society of Connecticut, Inc. v. Planning & Zoning Commission, 285 Conn. 381, 423–24, 941 A.2d 868 (2008).

“In protecting the religious practices of individuals, the legislature made the distinction between the ‘exercise of religion,’ which it protected with the strict scrutiny test found in subsections (a) and (b) of § 52–571b, and ‘religious beliefs,’ which the legislature prevented from being burdened by subsection (d).”  Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn.App. 646, 662, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51 (2007), cert. denied, 552 U.S. 886, 128 S.Ct. 206, 169 L.Ed.2d 144 (2007).  “[T]he employment practices of religious institutions are a form of ‘religious belief’ for purposes of subsection (d) ․” Id., 665.

III. DISCUSSION

A. Claims Against Religious Institutions Based on Sexual Abuse Allegedly Perpetrated by a Member of the Clergy

Courts in Connecticut have consistently held that claims against religious institutions stemming from sexual abuse allegedly perpetrated by a member of the clergy can be adjudicated without violating the first amendment.   In Nutt v. Norwich Roman Catholic Diocese, 921 F.Sup. 66 (D.Conn.1995), the plaintiffs brought an action for negligent employment against various religious institutions based upon the institutions' hiring of a priest that had sexually abused the plaintiffs.   The defendants moved to dismiss the claims sounding in negligent employment on the ground that the free exercise clause of the first amendment of the United States constitution would bar the plaintiffs' action.   The court rejected the defendants' argument and opined:  “[I]t is difficult to see how the plaintiffs' claims against the defendants would foster excessive state entanglement with religion.   The common law doctrine of negligence does not intrude upon the free exercise of religion, as it does not discriminate against [a] religious belief or regulate or prohibit conduct because it is undertaken for religious reasons ․ The court's determination of an action against the defendants based upon their alleged negligent supervision of [the priest] would not prejudice or impose upon any of the religious tenets or practices of Catholicism.   Rather, such a determination would involve an examination of the defendants' possible role in allowing one of its employees to engage in conduct which they, as employers, as well as society in general expressly prohibit.   Since the Supreme Court has consistently failed to allow the Free Exercise Clause to relieve [an] individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs, the defendants cannot appropriately implicate the First Amendment as a defense to their alleged negligent conduct.”  Id., 74.

The Nutt decision since has been acknowledged and endorsed by the superior courts of this state.   See, e.g., Kubala v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of New Haven, Docket No. CV 10 6014903 (May 20, 2011, Alexander, J.) (52 Conn. L. Rptr. 31, 34) (acknowledging that, in Nutt, “the plaintiffs' causes of action could proceed because analysis of such claims would not require impermissible delving into issues of worship and spirituality”), aff'd, 134 Conn.App. 459, 38 A.3d 1252 (2012), cert. denied, 305 Conn. 902, 43 A.3d 662 (2012);  Hayes v Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of Middlesex at Middletown, Docket No. CV 02 0100267 (March 5, 2004, Silbert, J.) (36 Conn. L. Rptr. 676, 678) (the claim of negligent hiring, retention and supervision “involves a factual inquiry and requires no interpretation or weighing of a religious belief but is merely the application of a secular standard, regardless of what aspect of tortious misconduct is before the court” and does not require inquiry into religious doctrine or practice);  Doe v. Buongirno, Superior Court, complex litigation docket at Norwich, Docket No. CV 00 0124271 (July 30, 2002, McLachlan, J.) (“Numerous courts have determined that a claim of institutional negligence does not require any inquiry into religious doctrine or practice.   Instead, review only requires the court to determine if the Church Defendants knew of [the minister's] inappropriate conduct, yet failed to protect third parties from him.”  (Internal quotation marks omitted));  Rosado v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 93 302072 (June 17, 1998, Skolnick, J.) (“It is apparent to the court, that in determining whether the defendants were negligent in the supervision of Pcolka, it would be able to apply neutral principles of tort law to determine whether the defendants failed to act when they knew or should have known of Pcolka's engaging in the alleged tortious conduct”);  Reynolds v. Zizka, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 95 0555222 (March 5, 1998, Aurigemma, J.) (“The Free Exercise Clause might well prohibit this court from interfering in the manner in which the Diocese supervised a priest's performance of Mass, or confession, but it certainly cannot prohibit this court from determining whether the Diocese should be liable for negligently allowing its employees to engage in sexual conduct with minor females”);  Reed v. Zizka, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV 95 0555221 (March 5, 1998, Aurigemma, J.) (same).

The court in Noll v. Hartford Roman Catholic Diocesan Corp., Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 02 4034702 (October 20, 2008, Shapiro, J.) (46 Conn. L. Rptr. 527), engaged in a thorough and well-reasoned analysis of free exercise jurisprudence as it relates to claims of negligent hiring, retention and supervision against religious institutions for employees' acts of sexual abuse.   The plaintiff in Noll brought an action alleging negligence and reckless and wanton behavior against a religious institution based upon its alleged failure to supervise evaluate and train a priest who sexually abused the plaintiff.   The defendant moved to dismiss the plaintiff's claims on the ground that the court lacked subject matter jurisdiction pursuant to the religion clauses of the United States and Connecticut constitutions and General Statutes § 52–571b.   Endorsing the reasoning in Nutt v. Norwich Roman Catholic Diocese, supra, 921 F.Sup. 66, the Noll court concluded that “the bulk of the plaintiff's claims of negligent and reckless institutional failure to appropriately deal with child sexual abuse will not inexorably entangle the court in a doctrinal dispute.”  Noll v. Hartford Roman Catholic Diocesan Corp., supra, 46 Conn. L. Rptr. 532.   The court discussed § 52–571b in depth, noting first that the Appellate Court in Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn.App. 646, determined that employment of ministers and clergy by a religious institution is a “religious belief” under subsection (d) of § 52–571b, and thus is not subject to the more strict rule under subsections (a) and (b), but instead is only prohibited from being burdened.  General Statutes § 52–571b;  Rweyemamu v. Commission on Human Rights & Opportunities, supra, 664–65.   Distinguishing the factual circumstances, however, the Noll court concluded that “the legislature did not intend that § 52–571b would apply to preclude a plaintiff from holding a religious institution responsible for its torts in the context of sexual abuse of a child by a clergyman.”  Noll v. Hartford Roman Catholic Diocesan Corp., supra, 532.

The defendant NRDC acknowledges these decisions as “persuasive authority” but, nonetheless argues that the first amendment landscape has changed in light of two recent state appellate cases, Dayner v. Archdiocese of Hartford, 301 Conn. 759, 23 A.3d 1192 (2011), and Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 666, and also in light of a recent United States Supreme Court opinion, Hosanna–Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, 565 U.S. 132 S.Ct. 694, 181 L.Ed.2d 650 (2012).   The court has examined these decisions in detail and, for the reasons set forth below, does not concur with the defendant's assessment that they have radically altered the legal landscape with respect to claims against religious institutions based on sexual abuse allegedly perpetrated by a member of the clergy.

B. Thibodeau v. American Baptist Churches of Connecticut

In Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 666, the plaintiff, an ordained Baptist minister, was eligible for employment opportunities through the defendant, a regional organization of American Baptist congregations which recognized ordinations performed by member churches and provided placement services for ordained ministers.   At some point, the defendant became concerned about the plaintiff's fitness for the ministry and thus decided not to circulate the plaintiff's profile to congregations seeking ministers.   The plaintiff brought an action against the defendant sounding in breach of an implied contract on a theory of promissory estoppel, defamation, deceit and fraud, and negligent infliction of emotional distress.  Id., 668–69.   The Appellate Court addressed the defendant's concerns as to each cause of action and ultimately concluded that adjudication of each cause of action would impermissibly entangle the court in matters related to the defendant's doctrines and internal affairs.   As to the promissory estoppel claim, the court opined that “[r]esolution of [the] claim would involve an impermissible inquiry into the defendant's internal procedures and its judgment regarding the qualifications of clergy, as well as the plaintiff's objective qualifications for employment opportunities through the defendant.”  Id., 677–78.   The court also determined that “the reasonableness of alleged promises and reliance thereon [could not] be decided without inquiry into such matters.”  Id., 678.   Regarding the plaintiff's defamation claim, the court concluded that “the gravamen of the dispute is the decision of the defendant, a religious organization, not to recommend the plaintiff for a position in the ministry.   The defamation claim cannot be entertained in isolation from the dispute over fitness for the clergy ․” Id., 683–84.   As to the plaintiff's fraud and deceit claim, the court concluded that the essence of this claim would delve into the defendant's decision not to circulate the plaintiff's resume, which was a protected ecclesiastical decision.  Id., 685.   Finally, with respect to the plaintiff's negligent infliction of emotional distress claim, the court concluded that “[i]n the context of this case, the plaintiff's claims are simply too closely related to the ecclesiastical functions of the church and the religious aspects of the plaintiff's relationship with the defendant to be treated as simple civil wrongs able to be addressed solely by neutral secular principles of law without consideration of areas protected from inquiry by the first amendment.   His claims are related to issues of church procedure and, as such, adjudication of his claims would require inquiry into the defendant's methods of investigating fitness for the ministry, its reasons for declining to recognize the plaintiff's ordination and its failure to assist him in obtaining employment with churches affiliated with the defendant.”  (Emphasis added.)   Id., 687.

A casual reading of the Thibodeau decision might suggest that our courts do not have jurisdiction over any ecclesiastical controversies regarding a clergymen's employment at a church However, the Appellate Court's decision did not have such far-reaching implications.   Adjudication of each of the plaintiff's claims in Thibodeau indeed would have required the court to delve specifically into the qualifications of clergymen.   This is in marked contrast to the plaintiff's claims in the present case, namely, claims that the defendant religious institution negligently hired, retained and supervised Father Ramsey, whom the defendants knew or should have known was engaging in, attempting to engage in, or in the past had engaged in sexual improprieties with minors—conduct which cannot under any circumstances be claimed to relate to religious beliefs or church doctrine.   The court's holding in Thibodeau was specific to the causes of action and factual circumstances that were before the Appellate Court.

This conclusion is bolstered by an examination of the Thibodeau court's analysis of the plaintiff's defamation claim in particular.   In resolving that claim, the Appellate Court relied in part upon Stepek v. Doe, 392 Ill.App.3d 739, 910 N.E.2d 655, appeal denied, 233 Ill.2d 600, 335 Ill.Dec. 647, 919 N.E.2d 366 (2009), a case in which a priest brought a defamation action against two parishioners and the Catholic Bishop of Chicago for statements made regarding the priest's acts of sexual abuse.   In discussing Stepek, the Appellate Court noted that “the [Stepek] court distinguished suits against priests and church organizations alleging sexual abuse.   Those cases allowed inquiry in Illinois, because those issues could be decided without considering church doctrine.”  (Emphasis added.)  Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 680.   The Appellate Court proceeded to characterize the Stepek case as “useful because [it] [illustrates] considerations pertinent to the present case”;  id., 679;  and enunciated that it was persuaded that the considerations of Stepek were pertinent to the disposition of the plaintiff's defamation claim.  Id., 683.   Thus, given the Appellate Court's endorsement of Stepek, one might deduce that the court did not intend to foreclose the possibility of future suits against priests and church organizations alleging sexual abuse, but rather intended its ruling only to extend to factual scenarios similar to those before the court.

The defendant in the present case points to the Thibodeau court's statement that “[t]he selection or assignment of clergy, and the removal, termination, or suspension of a pastor or clergy member are generally ecclesiastical matters with which civil courts cannot interfere.”  (Emphasis added.)  Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 684.   This general proposition of law, however, must be read in its context.   At the outset, it must be noted that the Appellate Court derived this point of law directly from 77 C.J.S. 112, Religious Societies § 128 (2006).   The general rule is, of course, subject to exceptions, which otherwise can be found in other sections of the treatise.   Section 50, which addresses religious societies' potential liability for torts, provides, in relevant part:  “If a church hires an individual despite knowledge of prior improper behavior in his or her former church-related employment, the church may be liable in tort for negligent hiring.”   77 C.J.S., supra, § 50, at p. 42.   Section 52, which specifically addresses sexual misconduct of pastors, provides, in relevant part:  “[W]here a religious society knew or should have known facts which would make a pastor's tortious sexual acts reasonably foreseeable, it can be liable for its own negligence in allowing the abuse to occur, such as through negligent hiring or supervision, and in a proper case, punitive damages can be awarded.”   77 C.J.S., supra, § 52, at p. 44.   These sections shed light on the application of § 128 and make it clear that the section should not be read in isolation.

Finally, since Thibodeau was decided, our state superior courts have continued to entertain civil actions against religious institutions based upon allegations of sexual abuse by priests.   For example, in Thopsey v. Bridgeport Roman Catholic Diocesan Corp., Superior Court, judicial district of New Haven, Docket No. CV 10 6009360 (February 15, 2012, Young, J.), the defendant religious institution argued in the midst of a discovery dispute that free exercise jurisprudence, the ministerial exception and General Statutes § 52–571b would prevent the discovery of documents relating to the plaintiff's claims of negligent retention and supervision against the defendant religious institution because those documents would delve into internal governance and organization of the religious institution.  Id. The court rejected these arguments, finding that the plaintiff's causes of action did not invoke religious doctrine or interfere with the practices of faith, and accordingly ordered the defendant religious institution to produce to the plaintiff various discoverable documents relating to the sexual proclivities of the defendant priest.  Id.;  see also Lara v. Legionaries of Christ, Superior Court, complex litigation docket at Hartford, Docket No. X03 CV 10 6016974 (August 30, 2011, Miller, J.) (denying a motion to strike the plaintiff's negligence, negligent retention and negligent supervision claims against the defendant religious institution, which were based upon allegations of sexual abuse by a priest).

In sum, the court does not agree with the defendant's premise that the court's holding in Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 670–71, 994 A.2d 212, cert. denied, 298 Conn. 901, 3 A.3d 74 (2010), prohibits the adjudication of the plaintiff's claims in this case by the application of neutral principals of law.

C. Hosanna–Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission and Dayner v. Archdiocese of Hartford

The defendant also argues that recent developments regarding the ministerial exception mandate that the plaintiff's action be dismissed.   In adopting what is known as the “ministerial exception,” the United States Supreme Court has explained the nature of the exception as follows:  “The members of a religious group put their faith in the hands of their ministers.   Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.   Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.   By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.   According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”   Hosanna–Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, supra, 132 S.Ct. 706.   The Hosanna–Tabor court found the ministerial exception solely applicable in the context of an employment discrimination suit brought on behalf of a minister and specifically cautioned that it “express[ed] no view on whether the exception bars other types of suits ․” Id., 710.

Prior to the issuance of the United States Supreme Court's decision in Hosanna–Tabor, our state appellate courts had addressed the ministerial exception and defined its contours as follows.  “The ministerial exception prevents courts or government agencies from exercising jurisdiction over a religious institution's actions regarding the employment of its ministers.”   Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn.App. 654–55.  “[I]t is judicial shorthand for two conclusions:  the first is that the imposition of secular standards on a church's employment of its ministers will burden the free exercise of religion;  the second, that the state's interest in eliminating employment discrimination is outweighed by a church's constitutional right of autonomy in its own domain.”  (Internal quotation marks omitted.)  Id., 652.

In Dayner v. Archdiocese of Hartford, supra, 301 Conn. 759, our state Supreme Court acknowledged a split of authority that exists among the federal circuit courts regarding the application of the ministerial exception.  Id., 769.   The court ultimately adopted the issue-sensitive approach enunciated by the Court of Appeals for the Second Circuit in Rweyemamu v. Cote, 520 F.3d 198 (2d Cir.2008), which dictates that “in an employment related action against a religious institution, even if it is established that the plaintiff's primary duties render him a ministerial employee ․ Connecticut courts must consider whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution's exclusive right to decide matters pertaining to doctrine or its internal governance or organization.”  (Citation omitted.)  Dayner v. Archdiocese of Hartford, supra, 784.   Applying this framework, the Dayner court found the ministerial exception applicable in the context of an employee's suit sounding in wrongful termination in violation of public policy, breach of implied contract and breach of promissory estoppel against her former religious institution employer and its agents.

The defendant NRDC argues that Hosanna–Tabor and Dayner effectively overrule Nutt and its progeny.   At the outset, it must be noted that both Hosanna–Tabor and Dayner involved plaintiffs formerly employed by a religious institution who were suing their former employers based upon a decision regarding their employment.   Neither of these cases involved third-party plaintiffs suing a religious institution for negligent hiring, retention and supervision based upon the alleged sexual abuse committed by an employee or agent of the religious institution.   Furthermore, the Hosanna–Tabor court cautioned that its ruling was applicable only to an employment discrimination suit brought on behalf of a minister and specifically stated that it expressed no view on whether the ministerial exception would bar other types of suits, specifically those involving employees alleging breach of contract or tortious conduct by their religious employers.  Hosanna–Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, supra, 132 S.Ct. 710.   The Dayner court, too, used language implying that its ruling only extends to a specific type of action, namely, an employment-related action brought against a religious institution.  Dayner v. Archdiocese of Hartford, supra, 301 Conn. 784 (“[I]n an employment related action against a religious institution, even if it is established that the plaintiff's primary duties render him a ministerial employee ․ Connecticut courts must consider whether adjudicating the particular claims and defenses in the case would require the court to intrude into a religious institution's exclusive right to decide matters pertaining to doctrine or its internal governance or organization” (citation omitted;  emphasis added));  see also Rweyemamu v. Commission on Human Rights & Opportunities, supra, 98 Conn.App. 654 (“We are persuaded that Connecticut administrative law, consistent with these persuasive precedents, must recognize the ministerial exception in the enforcement of our employment discrimination statutes.”  (Emphasis added.))   Moreover, since Hosanna–Tabor was decided, other courts have continued to exercise subject matter jurisdiction over civil actions brought against religious institutions alleging sexual abuse by priests.   See, e.g., Colomb v. Roman Catholic Diocese of Burlington, Vermont, Inc., United States District Court, No. 2:10–CV–254 (D.Vt. September 28, 2012);  Doe 169 v. Brandon, Court of Appeals of Minnesota, No. A12–1721 (Minn.App. May 28, 2013);  Redwing v. Catholic Bishop for Diocese of Memphis, 363 S.W.3d 436 (Tenn.2012).

Therefore, the question remaining after Dayner is whether under the issue-sensitive approach, adjudication of the plaintiff's present action would require this court to intrude into a religious institution's exclusive right to decide matters pertaining to doctrine or its internal governance or organization.   This strikes the court as an analysis substantively and functionally equivalent to that performed by the trial court in Noll v. Hartford Roman Catholic Diocesan Corp, Superior Court, complex litigation docket at Hartford, Docket No. X04 CV 02 4034702 (October 20, 2008, Shapiro, J.) (46 Conn. L. Rptr. 527);  a decision which this court finds persuasive on all legal points raised by the defendant in the present motion.

IV. THE PLAINTIFF'S NON–JUSTICIABLE CLAIMS

As a matter of general subject matter jurisdiction, this court finds that it can adjudicate the plaintiff's causes of action against NRDC related to sexual abuse allegedly perpetrated by Father Ramsey without violating the first amendment of the United States Constitution and article first, § 3 of the Connecticut Constitution.   However, as in Noll, the subject matter of certain of the plaintiff's factual allegations in the Third and Sixth Counts cannot be adjudicated without inevitable entanglement in matters of faith and doctrine and church governance.   NRCD argues that the court should dismiss those portions of counts three and six which infringe upon matters of church doctrine and church governance.   In support of this approach, the defendant cites Noll v. Hartford Roman Catholic Diocesan Corp., supra, where Judge Shapiro held that a court may grant a motion to dismiss which is addressed to parts of a count.

The court therefore grants the motion to dismiss as to the subject matter of the following specific paragraphs of the Third and Sixth Counts which, because they would inevitably require the court to consider and decide disputed issues of religious doctrine and practice that are matters not within this court's jurisdiction to adjudicate:

Paragraph 9 of the Sixth Count, which alleges:

The defendant Norwich Diocese is, and was at all times material to this complaint, subject to the constitution, canons, rules, regulations and discipline of the Roman Catholic Church as administered by and through its Diocese, its agents, servants and employees.

Paragraph 13 of the Third and Paragraph 14 of the Sixth Count, which alleges:

As a further result, the plaintiff, who was at the time of the events complained of, a practicing Catholic, has sustained spiritual damage.

As to those portions of this dispute, the plaintiff has not sustained her burden to show that the controversy in issue is outside the constitutional bar, such that secular court jurisdiction attaches.   See, Thibodeau v. American Baptist Churches of Connecticut, supra, 120 Conn.App. 674–75.

V. CONCLUSION

The Motion to Dismiss is granted as Paragraph 9 of the Sixth Count, Paragraph 13 of the Third Count, and Paragraph 14 of the Sixth Count.   In all other respects, the Motion to Dismiss is denied.

BY THE COURT,

Sheridan, J.

FOOTNOTES

FN1. HRCD and SACC have brought a separate motion to dismiss making arguments.   See Docket Entry # 125..  FN1. HRCD and SACC have brought a separate motion to dismiss making arguments.   See Docket Entry # 125.

Sheridan, David M., J.