UNITED STATES COURT OF APPEALS

OF THE THIRTEENTH DISTRICT

MARCH 2015

Civil Action No. 14-85FD

ERNESTINE PETRILLO,

PLAINTIFF – APPELLANT

V.

HARRIET YUN,

and

BALD MOUNTAIN COMMUNITY CHURCH,

DEFENDANTS – APPELLEES

On appeal from the

United States District Court for the

Western District of Alabama

BRIEF FOR DEFENDANTS-APPELLEES

ID #7315

Legal Skills II/Carroll March 24, 2015

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TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................................... i TABLE OF AUTHORITIES ....................................................................................................... ii

QUESTION PRESENTED FOR REVIEW ................................................................................ 1 I. WHETHER THE PLAINTIFF PRESENTS ANY ISSUE OF MATERIAL FACT FOR RESPONDEAT SUPERIOR, NEGLIGENT HIRING, AND/OR NEGLIGENT SUPERVISION THAT CAN OVERTURN THE ISSUED SUMMARY JUDGMENT. .............................................. 1 II. WHETHER THE GOVERNMENT CAN INTERVENE IN THIS CASE AT ALL WITHOUT INFRINGING ON BALD MOUNTAIN COMMUNITY CHURCH’S FREEDOM OF RELIGION RIGHTS ESTABLISHED BY THE ESTABLISHMENT AND FREE EXERCISE CLAUSES CREATED WITH THE FIRST AMENDMENT. ............................................................ 1

PRELIMINARY STATEMENT .................................................................................................. 2

STATEMENT OF THE CASE .................................................................................................... 3 SUMMARY OF THE ARGUMENT ........................................................................................... 5

ARGUMENT ................................................................................................................................. 7 I. WHETHER THE PLAINTIFF PRESENTS ANY ISSUE OF MATERIAL FACT FOR ........... 7 RESPONDEAT SUPERIOR, NEGLIGENT HIRING, AND/OR NEGLIGENT ............................ 7 SUPERVISION THAT CAN OVERTURN THE ISSUED SUMMARY JUDGMENT. ................. 7

A. The elements of negligence are not met by the plaintiff. ................................................................. 7 B. The doctrine of respondeat superior has not been adequately applied. ............................................ 9 C. BMCC’s hiring process is reasonable and justifiable. ................................................................... 12 D. Inadmissible/Circumstantial evidence is not enough to prove Defendants’ are liable for negligent supervision. ......................................................................................................................................... 15

II. WHETHER THE GOVERNMENT CAN INTERVENE IN THIS CASE AT ALL ................. 17 WITHOUT INFRINGING ON BALD MOUNTAIN COMMUNITY CHURCH’S ...................... 17 FREEDOM OF RELIGION RIGHTS ESTABLISHED BY THE ESTABLISHMENT AND ..... 17 FREE EXERCISE CLAUSES CREATED WITH THE FIRST AMENDMENT. ......................... 17

A. Two clauses protect BMCC from government intrusion. .............................................................. 18 B. Allowing the court to base an opinion on Yun and BMCC endangers the creation of a slippery . 19 slope. ................................................................................................................................................... 19 C. Summary judgment must pass to support the validity of the U.S. Constitution. ........................... 20

CONCLUSION ............................................................................................................................ 22

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TABLE OF AUTHORITIES Cases Heaven v Pender (t/a West India Graving Dock Co), (1882-83) L.R. 11 Q.B.D. 503…………………………….9 Blyth v. Waterworks Co. 11 Exch. 784…………………………………………………………………………………...10 Hendley v. Springhill Mem’l Hosp. 575 So. 2d 547,550 (1990)………………………………………………………………....12, 14 Jenkins v. Gadsden Times Pub. Corp. 521 So. 2d 957 (Ala. 1988)…………………………………………………………………….12 Coddington v. Berry Dry Goods Co. 137 S.W.2d 249, 252 (Ark. 1940)……………………………………………………………...13 Hudson v. DuraWear Corp. 344 So. 2d 182 (Ala. Ct. App. 1977)………………………………………………………......13 Solmica of Gulf Coast, Inc. v. Braggs 285 Ala. 396 (Ala. 1970)………………………………………………………………………13 Ramsey v. Gamber 469 Fed. Appx. 737 (11th Cir. Ala. 2012)……………………………………………………..14 Big B, Inc. v. Cottingham 634 So. 2d 999, 1003 (Ala. 1993)……………………………………………………………...15 Armstrong Bus. Services, Inc. v. AmSouth Bank 817 So. 2d 665, 682 (Ala. 2001)……………………………………………………………….18 Thompson v. Havard 235 So. 2d 853, 855 (Ala. 1970)……………………………………………………………….18 Hodges v. Carter 239 N.C. 517 (N.C. 1954)……………………………………………………………………...19 Serbian E. Orthodox Diocese v. Milivojevich 426 U.S. 696 (U.S. 1976)…………………………………………………………………..19, 20 Walz v. Tax Commission 397 U.S. 664 (1970)……………………………………………………………………………20

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Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993)……………………………………………………………………………20 Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Empl’y Oppor. Commission 132 S. Ct. 694 (2012)…………………………………………………………………………..21 Presbyterian Church in United States v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church 393 U.S. 440 (U.S. 1969)………………………………………………………………………21 Petrillo v. Rooks No. 14-85FD, 12 (W.D. Ala. Nov. 17, 2014)……………………………………………….....22 Statutes and Rules Restatement (Second) of Torts § 282 (1965)……………………………………………………………………………………10 2-37 Alabama Tort Law § 37.01………………………………………………………………………………………….12 Restatement (Second) of Agency § 219 (1958)……………………………………………………………………………………12 U.S. Const. amend. I……………………………………………………………………………..19 Fed. R. Civ. P. 56………………………………………………………………………………...22 Fed. R. Civ. P. 56(4)……………………………………………………………………………..22 Fed. R. Civ. P. 56(4)(d)…………………………………………………………………………..22 Fed. R. Civ. P. 56(c)……………………………………………………………………………..22

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QUESTION PRESENTED FOR REVIEW

I. WHETHER THE PLAINTIFF PRESENTS ANY ISSUE OF MATERIAL FACT FOR RESPONDEAT SUPERIOR, NEGLIGENT HIRING, AND/OR NEGLIGENT SUPERVISION THAT CAN OVERTURN THE ISSUED SUMMARY JUDGMENT.

II. WHETHER THE GOVERNMENT CAN INTERVENE IN THIS CASE AT ALL WITHOUT INFRINGING ON BALD MOUNTAIN COMMUNITY CHURCH’S FREEDOM OF RELIGION RIGHTS ESTABLISHED BY THE ESTABLISHMENT AND FREE EXERCISE CLAUSES CREATED WITH THE FIRST AMENDMENT.

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PRELIMINARY STATEMENT This is an appeal by the plaintiff from a summary judgment order entered in the office of the United States District Court for the Western District of Alabama on November 17, 2014 in favor of the defendants. The complaint was filed January 8, 2014. An answer by the defendants minus Reverend Linwood Rooks was filed May 14, 2014. A default judgment against Rooks was entered on July 7, 2014. Motion for summary judgment was submitted on August 10, 2014.

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STATEMENT OF THE CASE The plaintiff, Ernestine Petrillo (Petrillo), alleges that Senior Pastor Harriet Yun (Yun) and Bald Mountain Community Church (BMCC), the defendants, are partially liable for $132,000.00 she lost during her time in counseling with Associate Pastor Reverend Linwood Rooks (Rooks). Rooks was another named defendant that a default judgment was entered against prior to today. Petrillo was living in Bald Mountain, Alabama and working as a kindergarten teacher when two traumatic events happened in her life: the death of her parents and the termination of her engagement. These events happened between December of 2011 and May of 2012. As a member of Bald Mountain Community Church since childhood, when she sought out counseling she sought it out at the Church’s counseling services. Reverend Rooks was hired by BMCC in 2011. He was hired by Yun and the Church Council, led by LauraBelle Epperson (Epperson) who relied on the recommendation of Dr. Leland Lamprey North (North). North is an old friend and colleague of Yun. R. 36. He is the director of a counseling center and teaching facility in Nashville, where Rooks previously sought training. North immediately recommended Rooks very positively. R. 128. Rooks had been a student at the counseling center for three years. He then went through the rest of the hiring process and was soon after officially hired. At no point did North tell Yun that Rooks was caught attempting to solicit clients to invest in his company: R & B. North was the sole reference for Rooks. R & B was a spiritual bed and breakfast chain started by Rooks and his friend Reverend Heather Sedalia Burr (Burr). Petrillo called the offices of Reverend Rooks and scheduled an appointment with him. Rooks had been hired as the director of the Pastoral Counseling Center and an Associate Pastor at BMCC in 2011. Petrillo met with Rooks for counseling from May 2012 until April 2013. He

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helped her with her grief and then worked on her confidence. Rooks persuaded Petrillo to invest $132,000.00, a portion of the money she inherited from her parents, in R & B as a way to build up her confidence. According to Burr, Rooks did this when he knew the bed and breakfast was going bankrupt in an attempt to save it. R. 114-117. It was not enough, the company went under, and Petrillo lost all of her money. BMCC was founded by Yun and has been its senior pastor for 24 years. BMCC is an independent, congregationally-governed church. BMCC is governed by an elected church council that answers solely to its congregation. The Church’s council exercises little control over its pastors because it respects their spiritual connection with God and independence. R. 138. Petrillo moved to Madison, Wisconsin in June 2013 to live with her sister and attend school at the University of Wisconsin due to what she called “personal and educational reasons.” R. 60-61.

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SUMMARY OF THE ARGUMENT Throughout the history of this country separation of Church and State have been at the heart of our most pressing matters. How can the law regulate something so controversial and personal? The answer is it cannot. Nor should it be allowed to. As a people we oppose the tyrannical systems of government that hate any outside religions and harm those who practice something the monarchy or government or leader doesn’t themselves practice. We have gone to war with those countries, we have sanctioned those countries, and we have done everything in our power to end the reign of tyranny in those countries. When a question of church and state comes up the government and people have to ask themselves “what is the right thing to do?” Sometimes doing the right thing isn’t always the easiest thing and in matters of the court someone always gets hurt. There is almost always a winner and a loser, even in settlements. One person doesn’t get what he or she wanted. Sometimes it is because they haven’t done enough work to prove they deserve to win, other times it’s because their victory will be a detriment to society. This case involves the latter. Several claims are brought against the defendants Yun and BMCC and several other public policy questions are brought out by those claims. Yun and BMCC have been unjustly charged with negligent hiring, negligent supervision, and respondeat superior. Their rights given to them by the First Amendment have already been harassed and are in danger of being severely infringed upon. The United States District Court of the Western District of Alabama correctly affirmed a summary judgment order in favor of Yun and BMCC. Summary judgment requires there be no genuine issue of material fact. As explained in the argument below, there is no genuine issue of

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material fact. All facts can be sorted out by the judge and do not require a jury to hear and analyze them. Sending this case to trial would be a burden on the Defendants, but more importantly it would severely infringe on their First Amendment rights. No matter which party wins or loses, the long term result would be the opening of a Pandora’s box in regards to the separation of Church and State.

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ARGUMENT

I. WHETHER THE PLAINTIFF PRESENTS ANY ISSUE OF MATERIAL FACT FOR

RESPONDEAT SUPERIOR, NEGLIGENT HIRING, AND/OR NEGLIGENT

SUPERVISION THAT CAN OVERTURN THE ISSUED SUMMARY JUDGMENT.

A. The elements of negligence are not met by the plaintiff. A summary judgment motion tests the legal sufficiency of the complaint while allowing the court to consider documents such as affidavits, depositions, or contracts. Negligence focuses on the defendant’s unreasonable acts or omissions. Petrillo was not able to present any evidence that supports Yun and BMCC were unreasonable or purposefully omitted anything that could have prevented Petrillo from being injured. The four elements of negligence are: 1) ordinary prudence, 2) knowledge, actual and potential, 3) foreseeability, and 4) a causal link between the negligent act and injury. The standard for negligence is first and foremost an objective one. Unless under extraordinary circumstances, the law will compare the precautions taken by one person with any other reasonably prudent individual. Heaven v Pender (t/a West India Graving Dock Co), (1882-83) L.R. 11 Q.B.D. 503. In this case we must look at other religious hiring processes. It is not unreasonable or unlikely to expect other religions to bypass the personal lives of the pastoral members. Even though that has led to unfortunate incidents in the past involving child molestation convictions and other unflattering truths, other religious denominations do not seek to reveal what a religious leaders life is like outside of their duties. The care is in the ability to do the job well and the persons relationship with the religion. Yun and BMCC were not outside the reasonable prudent care of someone in that position. The Church had gone years without a problem in their counseling department. To fulfill the

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knowledge element of negligence, Yun and BMCC must have known about Rooks acts prior to hiring him. Even if Petrillo would like to use circumstantial evidence for her case, the problem didn’t occur until well into her counseling with Rooks. If there is no reasonable reason to do an act or refrain from an act, it is not negligence. Blyth v. Waterworks Co., 11 Exch. 784. That case has been cited by many federal courts because it mentions the heart of the foundation of negligence law. The case applies today. Reasonableness is a threshold question usually for a judge. Within the bounds of deciding what is reasonable is a question for the jury. The District Court decided that reasonableness was not sufficient. Moreover, even if Yun was informed about Rooks selling his bed and breakfast scheme to another client, no one brought forward admissible or valid evidence that proves how much Yun knew. Investigating incidents based on one persons declaration would lead to a mad world of finger pointing and crying wolf. It is completely justified that Yun keep the matter private and not wholly concern herself with it and even more justifiable that the court struck Exhibit C from evidence. The Restatement (Second) of Torts says that people must know the common law, legislative enactments, and general customs in so far as they are likely to affect the conduct of others. Restatement (Second) of Torts, § 282 (1965). Petrillo has been a member of BMCC for years. Surely she must know of Yun’s clergy privilege and the custom in the Church in regards to its hiring process. There is no evidence she worried about it or thought it was erroneous until she became the victim of it. Injuries that incur from unusual risks will not support liability for negligence. Of course seeking out a counselor is not an unusual risk. However, seeking out a counselor when you have never done it before is a novel risk to the first-timer. Petrillo admitted in her deposition that she

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never saw a counselor or sought out counseling. She sought out Rooks on her own, called his number, and met with him without consulting anyone else. Although there is no requirement to do so, a reasonable person in todays times and with todays advantages; the internet, smartphones, review websites, can perform a search to find a good guidance counselor. Of course her search would have probably come up with Rooks being a clean individual, but Petrillo’s lack of research makes her just as accountable for her damages as Yun and BMCC. At the very least it proves that a reasonable person does not always look into a persons personal life when selecting them for a job. Petrillo can argue that there is a definite causal link between Yun and BMCC’s hiring and supervision and Rooks actions that caused Petrillo’s injuries. However, a number of things could have gone differently. Petrillo could have asked someone about counseling at the Church who recommended a different counselor that she met with, she could have sought out counseling outside of the Church, she could have stopped seeing Rooks after he asked her for money. Yun could have asked North more detailed questions like Petrillo claims Yun should have, but he did not have to reveal the truth about Rooks past. Yun could have also asked about Rooks past, but maybe not the right question to get North to divulge the exact information necessary to prevent Yun from hiring Rooks. There are too many “ifs” to establish a distinct causal connection between Yun and BMCC hiring Rooks and Petrillo’s injuries. Rooks had tried to get his clients involved with his R & B bed and breakfast project while he was involved with North. The foreseeability of another accident or incident falls on North’s shoulders. The burden of responsibility was on him to tell Yun during one of their conversations and not on Yun to ask specifically about Rooks.

B. The doctrine of respondeat superior has not been adequately applied.

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Plaintiff-appellee Petrillo contends in count four of the complaint that BMCC and Yun are liable for Rooks’ actions because of the doctrine of respondeat superior. “Respondeat Superior… imposes liability on the master or employer for a tort committed by the servant or employee within the line and scope of his service or employment.” 2-37 Alabama Tort Law § 37.01. Two elements must be proven to sustain a cause of action for vicarious liability under respondeat superior: 1) that the person who is primarily liable to the plaintiff was a servant or employee of the defendant, and 2) the wrongful act was committed while the employee was in the line and scope of his employment. Hendley v. Springhill Mem’l Hosp., 575 So. 2d 547,550 (1990). If it is determined that the employee was not acting within the scope of his employment, then there can be no recovery under the doctrine of respondeat superior. Id. The ultimate test of whether there is a master-servant relationship is whether there is a right of control by the master over the servant. “…for one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the results to be accomplished…” Jenkins v. Gadsden Times Pub. Corp., 521 So. 2d 957 (Ala. 1988). Therefore it is critical to establish not just the elements, but what the scope of Rooks employment was. There are several exceptions to respondeat superior. “A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: the master intended the conduct or the consequences, or the master was negligent or reckless, or the conduct violated a non-delegable duty of the master, or the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation.” Restatement (Second) of Agency § 219 (1958). Rooks was an independent contractor of BMCC. R. 39. An independent contractor is one who,

exercising an independent employment, contracts to do a piece of work according to his own

methods, and without being subject to the control of his employer except as to the result of the

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work. Coddington v. Berry Dry Goods Co., 137 S.W.2d 249, 252 (Ark. 1940). Rooks accepted

employment as a counselor. It was BMCC’s job to get people seeing counseling in touch with a

counselor, but from that moment on the counselor was free to work in his own way and with his

own methods. Both Harriet Yun and Laurabelle Epperson testified that neither exercised any

right to control the manner and details of how Rooks practiced his pastoral counseling.

If the cause of action occurred during any one of Rooks’ other responsibilities, establishing

office hours, in-taking policies, billing policies, the plaintiff-appellee may have a better argument

since those were tasks assigned by BMCC. However, since the cause of action occurred within a

time where Rooks was not only allowed, but expected to practice his own means of counseling,

there is no respondent superior.

BMCC was a middleman in this case. A client needed a counselor, BMCC would put them in

touch with a counselor. If BMCC wanted to ensure the counselors practiced methods in a certain

way then BMCC would have to be in the room during the counseling session or ask the client to

give feedback afterwards. Such is a invasion of privacy on behalf of the client. We don’t ask

everyday citizens to tell us about their experiences with psychologists at hospitals or require a

third party be present in a therapist’s office.

Of course this idea of the doctrine is hurt by certain cases. There does not need to be control over all of a person’s activities in order for him to be considered an employee. Hudson v. DuraWear Corp., 344 So. 2d 182 (Ala. Ct. App. 1977). The Hudson court held that a company must retain the requisite degree of control over a persons activities for him to be an employee. That case has been used by others for positive purposes. There is a reserved right of control test in Alabama. Solmica of Gulf Coast, Inc. v. Braggs, 285 Ala. 396 (Ala. 1970). The court must look at the facts of the case to see if a requirement by BMCC to reserve the right of control was necessary. Questions of fact are for the jury. For this reason, it can be argued that it is appropriate to send the case back to trial.

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An appropriate case that brings us back to the main point is a more recent case held at a higher level of the court system in Alabama. The Court of Appeals for the 11th circuit upheld a summary judgment in favor of a head trainer who was being sued by a football player who injured himself in the weight room. The football player was working with the assistant trainer and claimed the head trainer was vicariously liable. The player's vicarious liability theory failed because the evidence showed that neither the strength coach nor the weight-room assistants were the head trainer's agents. The head trainer did not exercise the requisite control over the means and methods of the strength coach and his weight-room assistants to sustain liability on a theory of respondeat superior. Ramsey v. Gamber, 469 Fed. Appx. 737 (11th Cir. Ala. 2012). This theory asserts again that respondeat superior is a matter of facts. Petrillo did not present enough facts sufficient to question the liability of BMCC and Yun and take the case to trial. The agents acts must arise from personal motives or was committed to gratify personal objectives or desires of the agent. Hendley v. Springhill Mem’l Hosp., 575 So. 2d 547,550 (1990). Under Alabama rule that is the only way to avoid liability for the acts of an agent. This ruling was followed by four other 11th circuit district court cases, one Alabama Supreme Court ruling, and an opinion in the West Virginia Court of Appeals. No courts have ruled against it or distinguished it to date. Reviewing the facts in a light most favorable to Petrillo, Rooks motives to further his business during counseling sessions with Petrillo were personal motives and personal objectives. Thus, effectively fulfilling the criteria needed to find Yun and BMCC not liable.

C. BMCC’s hiring process is reasonable and justifiable. There is no doubt that as the party hiring Rooks, BMCC and Senior Pastor Yun owed Petrillo a duty to use care, protection, and effectiveness when selecting an associate pastor. However, as

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unfortunate as it is, the money lost By Petrillo because of Rooks’s actions has nothing to do with BMCC and Yun. There is no connection in their process of hiring Rooks and his actions that caused Petrillo to lose $132,000. Petrillo must establish one of two elements to prevail on her claim of negligent hiring: 1) that the defendants knew Rooks was unfit for a position as a pastoral counselor, or 2) that they exercised the due diligence to know. Big B, Inc. v. Cottingham, 634 So. 2d 999, 1003 (Ala. 1993). Looking solely at the facts of the case, the defendants did exercise enough due diligence. The hiring process for any associate pastor at BMCC goes as Yun explained in her deposition: When the congregation decides it wants to replace an associate pastor or create a new position it appoints a call committee. The call committee goes through a process of searching for qualified individuals by collecting applications, screening those applications, checking references, eventually identifying a small prospective group. The candidates in the group are usually invited to visit the church and worship with the congregation so everyone involved can get to know them. Committee will then recommend one individual to the congregation who will hold a special meeting, review all the information and impressions from the candidates visit and decide if they would like to hire them. R. 34-36. This process creates a layer cake system that requires candidates to go through several layers of an application before being hired. To hire Rooks specifically the Church used the process described above. The church council was appointed as the call committee. Epperson asked Yun for recommendations and Yun immediately called North. North immediately mentioned Rooks despite being aware of his past history of inappropriate behavior. Rooks then came in for a visit. Despite speaking about Rooks on three occasions the issue of Rooks selling R& B as a way to invest to clients never came up. Why did it never come up? Because there was no reason for it to. Put yourself in Yun and

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BMCC’s shoes. BMCC’s counseling services have been around for as long as the church itself. That’s 24 years without an incident. The process has been around for a long time and has not yielded any problems. Yun was recommended a man who was finishing up a three year counseling program by a friend who conveyed his character in the highest regard as an excellent counselor with first rate skills. R. 128. Rooks met with the congregation, looked everyone in the eyes, talked with them, got to know them, and convinced them he was completely proper for the role of associate pastor and director of counseling services. He did not just dupe Petrillo, he duped the entire congregation. BMCC and Yun should not be held liable for this. Petrillo contends in her complaint that BMCC and Yun had a duty to use reasonable care to hire only persons who were qualified, competent, and ethical. Did they hire someone who was qualified? A first-rate pastor who was nearing the end of his three year counseling program is certainly qualified. Did they hire someone who was competent? Rooks visited the congregation and met with the people to convey his competence himself, and again, his three year program fulfillment under the helm of a man with a doctorate. Did they hire someone ethical? When an employer hires a person off the streets without references and they don’t ask for a reference, that can be negligent hiring. Serving as a reference, North, a person Yun held in high regard, vouched for Rooks. How great of a standard of due diligence can be expected of BMCC and Yun? Even if Yun had dug deeper and asked more questions about Rooks there is no evidence that North would have conveyed the inappropriate incidents to her. Furthermore, the evidence that Yun did not ask and that her and Epperson took North’s recommendation as enough was not an example of fatuity on their part but instead an example of the admiration North had in the community. His inability to transfer any necessary information ruins his own reputation. The counseling services are meant

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to help people, and there has never been an incident of anyone being put into this situation before. Yun and BMCC are not in the business to neglect certain necessary facts just to fill a position. The layered hiring process and reference check is an example of that. Yun and BMCC performed a necessary amount of due diligence. Petrillo testified in her deposition that once she noticed she needed help she reached out to Rooks. Just to be clear – Petrillo did not seek Rooks through BMCC, she sought him out on her own. He had been at the church for six months and she, along with other females in the congregation, claimed to be “attracted” to him. She called his office and asked for an appointment and met with him the next day. R. 68. Petrillo wants to hold BMCC and Yun liable for not performing necessary due diligence when hiring Rooks. Yet, when Petrillo sought out counseling, something she testified to never doing before, she called Rooks’s office immediately. There was no due diligence practiced on her part in her search for a counselor. She could have asked around. She was a member of the congregation and she wasn’t his first client. She could have asked other members. She could have asked Yun what she knew about him. She could have asked other counselors what their practices were like. This may not have divulged necessary information to Petrillo to steer clear of Rooks, but she cannot file a complaint against BMCC and Yun for not doing enough of something she didn’t do herself, especially when Rooks is viewed as an independent contractor.

D. Inadmissible/Circumstantial evidence is not enough to prove Defendants’ are liable for negligent supervision. In count six Petrillo argues that as employer and supervisor of Rooks, BMCC and Yun are liable for negligent supervision. She charges that Yun and BMCC should have known or knew that Rooks was engaging in unethical behavior as a pastoral counselor. Rooks, as stated earlier,

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should be viewed as an independent contractor. If viewed as an absolute employee of BMCC, there is still no validity to this complaint. “In the master and servant relationship, the master is held responsible for his servant's incompetency when notice or knowledge, either actual or presumed, of such unfitness has been brought to him. Liability depends upon its being established by affirmative proof that such incompetency was actually known by the master or that, had he exercised due and proper diligence, he would have learned that which would charge him in the law with such knowledge. Armstrong Bus. Services, Inc. v. AmSouth Bank, 817 So. 2d 665, 682 (Ala. 2001). The key issue is a piece of inadmissible evidence. During her deposition, Yun was not at liberty to speak about a conversation between her and Esther Borzoi, a member of the church who does clerical work from time to time. R. 40-42. Petrillo contends this conversation must have been about Rooks unethical behavior and it is paramount to use as evidence justifying her claim that Yun knew about Rooks behavior and is therefore liable. Borzoi asked Yun to speak in private and that she initially intended the conversation to be controversial. Mr. Dupriest made a statement that Borzoi told Yun that she had heard from at least two people who were clients in pastoral counseling of Rooks that he was urging them to invest in a bed and breakfast business. Yun refused to answer based on her clergy privilege. R. 40-42. The ruling was sustained in favor of Yun and the evidence was kept out. To survive summary judgment on a negligent supervision claim, the plaintiff must produce "affirmative proof that such incompetency was actually known by the master or that, had he exercised due care and proper diligence, he would have learned that which would charge him in the law with such knowledge." Thompson v. Havard, 235 So. 2d 853, 855 (Ala. 1970). Affirmative proof must be brought. Simply using circumstantial evidence is not enough.

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There is no doubt that Petrillo was duped by Rooks. There is also no doubt that Yun and BMCC are not liable for negligence. Rooks duped them as well and presented himself as an innocent and friendly associate pastor who clearly had other motives. The hiring process and supervision of Rooks was correct. The process may not be perfect, but it worked for years without an incident and the Church should not be penalized for one mishap. Even if custom is wrong, following it does not create professional negligence. Hodges v. Carter, 239 N.C. 517 (N.C. 1954).

II. WHETHER THE GOVERNMENT CAN INTERVENE IN THIS CASE AT ALL

WITHOUT INFRINGING ON BALD MOUNTAIN COMMUNITY CHURCH’S

FREEDOM OF RELIGION RIGHTS ESTABLISHED BY THE ESTABLISHMENT AND

FREE EXERCISE CLAUSES CREATED WITH THE FIRST AMENDMENT. BMCC’S position is that any inquiry into its decision to hire Rooks would interfere with the free exercise of religion. BMCC also maintains that the court cannot adjudicate the merits of Petrillo’s claim without interpreting and deciding the merits of religious doctrine and practice, which the First Amendment forbids. Even if the court finds there is material fact that support overturning the summary judgment issued by the district court, the summary judgment should not be reversed because of the First Amendment ands its Free Exercise clause. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” U.S. Const. amend. I. The court began distinguishing Petrillo’s argument by dismantling the standard that of hiring a clergy for a pastoral position would be considering a matter of religious significance. Due to the Establishment and Free Exercise clauses no court has the right to involve itself in religious matters. The Supreme Court has held that inquiries made by the State Supreme Court into matters of a religious sanctum contravened the First and Fourteenth Amendments. Serbian E.

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Orthodox Diocese v. Milivojevich, 426 U.S. 696 (U.S. 1976). On this matter alone the courts judgment should be affirmed.

A. Two clauses protect BMCC from government intrusion. Two clause’s are derived from the First amendment and its freedom of religion: 1) the Establishment Clause, 2) the Free Exercise Clause. The general goal of the Establishment clause is a “benevolent neutrality” of the governments interactions with respect to religion. Walz v. Tax Commission, 397 U.S. 664 (1970). It bars the government from sponsoring religion, giving financial support of religion, and active involvement in religious activities. Id. The latter applies to this case. Infringing on the rights of BMCC will create a slippery slope that allows the future courts to have a chance to interfere with other church’s hiring processes. The Establishment Clause bars government preference of one religion over another. Any law that grants a religion a preference is reviewed by the court with strict scrutiny. The law will be held unconstitutional until the government proves it is necessary. A court’s opinion does not become law, but granting the district court the right to put BMCC on trial and review its hiring process will reinforce other court’s to do the same to other religious denominations. If the opposition argues that this will not create a slippery slope, and the court reviews this case without hearing others, then the court is favoring other religions over BMCC’s. This cannot stand. The more important clause for us to look at is the free exercise clause. If a governmental action’s purpose is to single out religion for adverse treatment or to hinder or discriminate against a particular religion, it violates the clause unless it is narrowly tailored to advance a state interest. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). Of the many issues the free exercise clause addresses, the ability to choose a minister is the

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most applicable to this case. The free exercise clause prevents the government from interfering with the freedom of a religious group to select its ministers. No matter what the process is. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 132 S. Ct. 694 (2012). Rooks performed pastoral duties and office duties as director of the counseling center. The amount of time a church employee spends performing religious functions rather than secular ones is not determinative. Id. Rooks may have had normal work duties that could make him an employee of BMCC, but his service to the Church as an associate pastor is paramount.

B. Allowing the court to base an opinion on Yun and BMCC endangers the creation of a slippery

slope. If summary judgment was not passed and the case went to trial, that would begin the evolution of judicial supervision in the role of religious ordinances. “First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.” Presbyterian Church in United States v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440 (U.S. 1969). By reversing summary judgment and allowing this case to go to trial the court is giving the state permission to meddle in a religious organizations hiring process. This would be an infringement on the oldest rule in the history of the United States of America: the First Amendment.The First Amendment forbids the federal government from making laws that establish religion or prohibits the free exercise of religion. By finding the Church accountable for respondeat superior, negligent hiring, or negligent supervision, the government is applying law to find the Church liable for its hiring process and forcing them to change the process altogether so this result doesn’t happen again. However, nothing like this has happened in the Church’s 24

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year history and nothing gives evidence that it will happen again.

C. Summary judgment must pass to support the validity of the U.S. Constitution. Sometimes one person must be punished for the good of society. That’s a scary rule to live by, but unfortunately it sometimes must be fulfilled to further society. Today the court is met with a dilemma. Does it ignore the First Amendment and open up the door to countless cases that use this one as support for why a court can invade a religious denominations hiring process or does it find in favor of the Church, a result that will leave Petrillo out of money again, but keep the First Amendments power strong. Summary judgment is a method for going beyond the pleadings (complaint and answer) and examining the actual evidentiary material before holding trial. If the evidence shows there is no need for a trial, summary judgment can avoid any unnecessary steps. Fed. R. Civ. P. 56. An opposing party may not rely on the allegations in their pleading solely to defeat a summary judgment motion. Id. Petrillo does not raise any concrete evidence to support her argument when summary judgment is brought by BMCC and Yun. Her most important defense of the summary judgment is the inadmissible evidence known as Exhibit C that Petrillo calls circumstantial. Petrillo v. Rooks, No. 14-85FD, 12 (W.D. Ala. Nov. 17, 2014). Usually affirmative evidence is preferred. Fed. R. Civ. P. 56(4). However, sometimes a non-movant can bring forward facts that are unavailable. Fed. R. Civ. P. 56(4)(d). In that case a court can defer considering the motion or deny it, allow time to obtain affidavits or declarations or to take discovery, or issue any other appropriate order. There are options. The ultimate goal is to grant summary judgment when the court determines that there is no genuine issue as to any material fact. Fed. R. Civ. P. 56(c). Allowing the case to survive the summary judgment because of Exhibit C creates two

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problems. The first problem is simple. If the evidence is inadmissible it doesn’t make sense to allow circumstantial evidence to be the only proof that allows a trial when the evidence might not be able to be brought up in court. The District Court already found Exhibit C inadmissible and there is nothing to show they’ll suddenly change their minds about it. The second problem is that quashing a summary judgment motion in this case will go against Yun’s clergy privilege. Yun’s congregation believes they can talk to her in private. Many seek counsel with her or any of BMCC’s pastors for that reason. R. 42. If a court can overturn a summary judgment and allow evidence that stems from a private conversation, even if the person in the conversation said she no longer wanted it to be kept confidential, it would drastically hurt the Church, the privacy of its congregation, and be a clear infringement of the government meddling in the a religious denominations affairs. We all feel for Petrillo. She is clearly someone who was taken advantage of, her private affairs and personal inheritance meddled with. It’s an unfortunate incident that none of us would wish on our friends. However, Yun and BMCC are not the criminals. The only real criminal in this case is Rooks. His own personal actions and motives, stemming from a failing business and no proper punishment for his previous actions, were the deciding factors that led to Petrillo’s damages. The Church and Yun feel bad for Petrillo, they wish they could help, but not like this. Quashing the summary judgment would present problems both procedural and constitutional and for the good of the public that cannot be allowed.

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CONCLUSION

For the same reasons it was ordered by the District Court and those brought up here in this document, the summary judgment order appealed from should be affirmed. Respectfully submitted,

_____________________________

#7315 Attorney for Defendant-Appellee’s

Harriet Yun and Bald Mountain Community Church