Roman Catholic Archbishop v. Superior Court (131 Cal. App. 4th 417, 2005)

Opinion

KLEIN, P. J.

INTRODUCTION

This proceeding arises out of a grand jury investigation into allegations that two Roman Catholic priests, petitioners Doe 1 and Doe 2 (sometimes hereafter referred to as the Priests), sexually assaulted children while they worked for petitioner Roman Catholic Archbishop of Los Angeles, a Corporation Sole (hereafter referred to as the Archdiocese). In seeking to quash grand jury subpoenas duces tecum, petitioners raise issues that require a balance of the rights of religious belief and practice with the rules of the criminal justice system.

As the California Supreme Court noted in connection with this state’s evidentiary privilege for clergy-penitent communications (Evid. Code, §§ 1030-1034), “the statutory privilege must be recognized as basically an explicit accommodation by the secular state to strongly held religious tenets of a large segment of its citizenry.” (In re Lifschutz (1970) 2 Cal.3d 415, 428 [85 Cal.Rptr. 829, 467 P.2d 557].) While it is true the right to religious freedom holds a special place in our history and culture, there also must be an accommodation by religious believers and institutions to the rules of civil society, particularly when the state’s compelling interest in protecting children is in question. Although the religion clauses of the First Amendment to the United States Constitution “embrace[] two concepts, — freedom to believe and freedom to act,” the first concept “is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” (Cantwell v. Connecticut (1940) 310 U.S. 296, 303-304, fn. omitted [84 L.Ed. 1213, 60 S.Ct. 900].)

The Los Angeles County Grand Jury subpoenaed various documents from the Archdiocese which purportedly would allow the grand jury to determine whether to indict the Priests. Petitioners objected to disclosure of the subpoenaed documents, primarily relying on the freedom of religion clauses in the federal and California Constitutions and on California’s evidentiary privileges. Some of petitioners’ objections were sustained, but the great majority of them were overruled. Petitioners seek to reverse the adverse rulings. With the exception of a single document, we affirm the rulings ordering the subpoenaed materials to be turned over to the grand jury.

PROCEDURAL BACKGROUND

In June and July 2002, the Los Angeles County Grand Jury served subpoenas duces tecum on the Archdiocese’s custodian of records, seeking documents relating to child sexual abuse allegedly committed by certain Roman Catholic priests. Except for routine attorney-client communications, the Archdiocese turned over the requested documents. However, several priests and the Archdiocese immediately filed motions to quash the subpoenas. As a result, none of the documents has been turned over to the grand jury.

The parties to this proceeding, the petitioners, the Priests and the Archdiocese, and the real party in interest, the District Attorney of Los Angeles County (District Attorney), stipulated to the appointment of Retired Judge Thomas Nuss as referee (hereinafter, referee) to resolve substantive issues raised by the motions to quash.

On July 15, 2002, the referee concluded the subpoenas were not defective for failing to meet the affidavit requirements set forth in Code of Civil Procedure sections 1985, subdivision (b) (affidavit shall be served with subpoena duces tecum showing good cause and materiality) and 1987.5 (service of subpoena duces tecum is invalid without affidavit).

On July 29, 2002, petitioners sought a writ of mandate from this court vacating the referee’s order denying their motions to quash. We issued an order to show cause. After briefing and oral argument, we held a California grand jury has the power to issue a subpoena duces tecum and that such a subpoena does not require a good cause affidavit. (M. B. v. Superior Court (2002) 103 Cal.App.4th 1384 [127 Cal.Rptr.2d 454].)

On June 25, 2004, the referee quashed all the grand jury subpoenas in response to the United States Supreme Court’s decision in Stogner v. California (2003) 539 U.S. 607 [156 L.Ed.2d 544, 123 S.Ct. 2446], which held California’s newly enacted statute of limitations for child molestation was unconstitutional when used to revive time-barred prosecutions. However, the referee granted the People leave to serve new subpoenas requesting the identical documents on the assurance and subsequent showing the People were investigating credible, prosecutable claims against named targets.

On June 30, 2004, the People served the two grand jury subpoenas, one for Doe 1 and one for Doe 2, at issue in this writ proceeding.

On July 9, 2004, Does 1 and 2 moved to quash the new subpoenas. The Archdiocese followed with its own motion to quash.

On September 7, 2004, the referee issued a decision which substantially rejected petitioners’ motions to quash. Out of the approximately 285 subpoenaed documents challenged by petitioners below, the referee sustained 53 objections and ordered the remaining documents turned over to the grand jury. Of the 53 sustained objections, one was based on the attorney-client privilege (Evid. Code, § 954), two were based on the clergy-penitent privilege (Evid. Code, §§ 1033-1034), and 50 were based on the physician-patient privilege (Evid. Code, § 1014). The referee stayed disclosure of the documents to enable the parties to seek review.

Thereafter, the Archdiocese filed a petition for writ of mandate in this court seeking to prevent disclosure of 15 documents the referee had ruled could go to the grand jury. The Priests filed their own petition for writ of mandate asking this court to prevent the disclosure of any documents to the grand jury. The petitions were consolidated, an order to show cause was issued, production of documents was stayed, and briefing was obtained from the parties.

An amicus curiae brief from Monsignor Thomas Green, a professor of canon law, was filed in support of petitioners’ claims.

FACTUAL BACKGROUND

1. Petitioners’ claim the subpoenaed documents cannot be disclosed to grand jury.

Petitioners contend the referee erred in ruling the subpoenaed documents should be disclosed to the grand jury because compliance with the subpoenas would violate constitutional and statutory rules. Petitioners assert a Catholic bishop has a religious obligation to care for the physical, emotional and spiritual well-being of the priests within his diocese. Petitioners argue all the communications arising out of this obligation, including communications with the accused priests and the psychotherapists who treat them, are protected from disclosure by the constitutional right to freedom of religion and by California’s psychotherapist-patient and clergy-penitent evidentiary privileges. In support of these claims, petitioners submitted evidentiary declarations, which were opposed by declarations filed by the District Attorney.

2. Petitioners’ evidentiary declarations; their reliance on the church’s “formation of clergy” doctrine.

In declarations supporting its motion to quash, the Archdiocese asserted that according to Roman Catholic doctrine, bishops are the direct successors of the 12 apostles of Jesus Christ. Under the church’s “formation of clergy” doctrine, a bishop is charged with the responsibility of sanctifying his priests, and is obligated to “care for and treat any emotional, physical, or spiritual problem a priest may be experiencing.” In carrying out this obligation, a bishop “may establish detailed boundaries for his priests concerning chastity” and “pass judgment in particular cases concerning the observance of this obligation. The bishop is obliged to intervene and judge inappropriate conduct of any priest and to impose restrictions and penalties as appropriate in his moral judgment.” The Archdiocese argued these tasks require “open communications between the bishop and his priests.”

A bishop “is permitted to appoint Episcopal vicars. An Episcopal vicar has the same power as a Bishop in the specific type of activity for which he is appointed.” The archbishop in Los Angeles, Cardinal Mahony, has appointed such a vicar, called the Vicar for Clergy, who is obligated to care for the “emotional, physical, psychological and spiritual lives” of the archdiocesan priests. Monsignor Craig Cox, who is both a canon lawyer and the Vicar for Clergy, declared Cardinal Mahony had established policies for the Archdiocese under which accusations of clerical sexual misconduct immediately are investigated. “The involved priest is confronted and is encouraged to discuss whatever problems he is experiencing regarding chastity.” “Msgr. Cox states ‘Based on the fundamental religious relationship between the bishop and his priest, the priest is encouraged to communicate his deepest psychological and sexual issue[s], to undergo psychiatric evaluation and treatment, and to share the results of this therapy with the Vicar and the Bishop. All of this for the purpose of the ongoing formation and sanctification of the priest.’ ” (Italics added.)

If “a canonical investigation of a boundary violation or accusation of sexual misconduct [is required], the process is conducted in accord with the requirements of Canons 1717-1719” and pursuant to Archdiocesan practice. These Canons require the bishop to inquire carefully either personally or through some acceptable person, about the facts and circumstances and about the imputability of the offense, [¶] . . . [T]o date, the bishops and priests have always understood that these records would be confidential, and files covering these materials would be kept separately from the priest’s normal personnel file.”

3. The District Attorney’s evidentiary declarations.

In an attempt to rebut petitioners’ evidentiary claims, the District Attorney submitted declarations from Thomas Doyle, a Roman Catholic priest who is also an expert in canon law.

Father Doyle stated it is expected the preliminary investigation, required by Canons 1717-1719, will generate a written record. “The information contained in the record may be sensitive and is to be treated accordingly with due regard for the reputations of those involved. It may however, be licitly and properly disclosed to civil law enforcement agencies if it involves [a] matter as serious as sexual abuse.” Father Doyle asserted “investigations of child abuse documented by the Archdiocese, through the Vicar for Clergy, which are kept in the ‘secret archives’ (confidential files) can be and have been supplied to law enforcement in other jurisdictions.”

4. Referee’s final decision on petitioners’ claims.

In his final decision, the referee rejected petitioners’ claims all the subpoenaed documents had arisen out of the archbishop’s religious obligation to care for the physical, emotional and spiritual well-being of his priests, and, therefore, that disclosing them to the grand jury would violate a constitutional right to freedom of religion, California’s evidentiary privileges for clergy-penitent and psychotherapist-patient communications, and various other rules of law.

The referee held the subpoenas violated neither the free exercise clause nor the establishment clause of the federal Constitution. Further, compliance with the subpoenas would not impermissibly burden petitioners’ religious beliefs or practice under Employment Div., Ore, Dept. of Human Res. v. Smith (1990) 494 U.S. 872 [108 L.Ed.2d 876, 110 S.Ct. 1595] (Smith), nor would it create an impermissible governmental entanglement with internal church affairs under Lemon v. Kurtzman (1971) 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105], As for California’s free exercise clause, even under the pre-Smith (Smith, supra, 494 U.S. 872), compelling state interest test, disclosure was required because the government has a compelling interest in prosecuting child molesters.

While the referee found evidence in the record to support the assertion Cardinal Mahony had a religious obligation to care for his priests, he also found the Archdiocese simultaneously had been engaged in the kind of routine investigation any employer would undertake upon learning a trusted employee had been accused of child molestation. In addition, the referee held the clergy-penitent privilege was inapplicable where the communication had been disclosed to a third person.

Regarding the principal remaining issues, the referee concluded the psychotherapist-patient privilege protected some of the subpoenaed documents, that the prosecution of Doe 1 and Doe 2 was not precluded by the United States Supreme Court’s statute of limitations ruling in Stogner v. California, supra, 539 U.S. 607, that the prosecutor had not improperly manipulated the grand jury process, and that the subpoenas were not impermissibly vague or overbroad.

CONTENTIONS

Petitioners’ chief contentions are that disclosure of the subpoenaed documents is barred by the First Amendment of the federal Constitution and by the free exercise clause of the California Constitution, as well as by Evidence Code provisions relating to the clergy-penitent and psychotherapist-patient privileges.

Additionally, petitioners contend disclosure of the subpoenaed documents is barred by California’s attorney-client and work product privileges; under Stogner v. California, supra, 539 U.S. 607, disclosure of the subpoenaed documents is barred by the ex post facto clause; the District Attorney improperly usurped the grand jury’s authority; the subpoenas duces tecum were impermissibly vague and were issued without proper authority and without the requisite good faith affidavit; and disclosure of the subpoenaed documents is barred by assorted statutory and constitutional rules.

DISCUSSION

1. Constitutional right to freedom of religion does not bar disclosure of the subpoenaed documents.

Petitioners contend the disputed documents cannot be turned over to the grand jury without violating their right to freedom of religion. In particular, they claim disclosure of the subpoenaed documents will violate the free exercise and establishment clauses of the First Amendment to the federal Constitution, as well as the free exercise clause of the California Constitution. For the reasons explained, post, petitioners’ contention is without merit.

a. General principles.

“The Religion Clauses of the First Amendment provide: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation’s people.” (Cutter v. Wilkinson (2005) 125 S.Ct. 2113, 2120 [161 L.Ed.2d 1020].) The First Amendment “safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, — freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.” (Cantwell v. Connecticut, supra, 310 U.S. 296, 303-304, fn. omitted.)

Judicial decisions regarding the religion clauses of the First Amendment are subject to de nova review. (See Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, 1199 [124 Cal.Rptr.2d 867] [establishment clause challenge to religious invocation at municipal function reviewed de nova].)

b. No violation of the free exercise clause of the federal Constitution.

Petitioners’ contention that disclosure of the subpoenaed documents would violate the free exercise clause of the federal Constitution is defeated by Smith.

(1) Smith’s new rule for evaluating free exercise claims rests on “neutral laws of general applicability. ”

In Smith, supra, 494 U.S. 872, a case involving peyote use by members of the Native American Church in a state (Oregon) which had not granted an exemption for sacramental use of the drug, the United States Supreme Court adopted a new rule for evaluating free exercise claims. Smith rejected the former balancing test (see Sherbert v. Verner (1963) 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790]), under which “governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest,” reasoning “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” (Smith, supra, 494 U.S. at pp. 878-879, 883.) Under the new rule, “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).’ [Citation.]” (Id. at p. 879, italics added.)

In Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) 508 U.S. 520 [124 L.Ed.2d 472, 113 S.Ct. 2217], the United States Supreme Court summed up its newly-announced rule “In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. ... A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” (Id. at pp. 531-532, italics added.)

Although Smith involved criminal conduct, the case is not limited to such situations. As Smith commented, “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’ [Citation.] To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ — permitting him, by virtue of his beliefs, ‘to become a law unto himself,’ [citation] — contradicts both constitutional tradition and common sense.” (Smith, supra, 494 U.S. at p. 885, fn. omitted, italics added; see Gary S. v. Manchester School Dist. (1st Cir. 2004) 374 F.3d 15, 18 [rejecting argument Smith was “limited to instances of socially harmful or criminal conduct,” court applied Smith to claim the Individuals with Disabilities Education Act was unconstitutional as applied to disabled child attending Catholic elementary school].)

Smith is applicable here and defeats petitioners’ contention the First Amendment’s free exercise clause bars disclosure of the subpoenaed documents.

(2) The “ecclesiastical abstention” doctrine does not apply.

Petitioners, however, argue an exception to the Smith rule applies, namely, the ecclesiastical abstention doctrine. This doctrine grew out of the so-called church property cases. However, the church property cases, as exemplified by the ones cited by the Archdiocese, are inapposite because they involve internal church disputes whose resolution crucially depend on interpretations of religious doctrine.

However, the case at bar is not, at its core, an internal church dispute. It is a criminal investigation into suspected child molestation allegedly committed by Catholic priests. Smith itself characterized the church property decisions as cases in which the government was impermissibly “lending] its power to one or the other side in controversies over religious authority or dogma.” {Smith, supra, 494 U.S. at p. 877.) The case at bar does not involve an internal church dispute over religious authority or dogma.

(3) The “ministerial exception” doctrine does not apply.

Petitioners also argue the Smith rule does not defeat their free exercise claim because the so-called ministerial exception doctrine applies. Petitioners’ reliance on this exception is misplaced.

The ministerial exception doctrine is based on the notion a church’s appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and termination of employment, is an inherently religious function because clergy are such an integral part of a church’s functioning as a religious institution. (See, e.g., Werft v. Desert Southwest Annual Conference (9th Cir. 2004) 377 F.3d 1099, 1101.) This is not an employment case and the ministerial exception doctrine has no application here.

(4) Smith applies to these grand jury subpoenas.

The Archdiocese contends Smith is inapplicable because there is no legislative act at issue, and because subpoenas are not neutral laws of general application. This argument misconstrues the notion of generally applicable neutral laws. “A law is not neutral towards religion if its ‘object ... is to infringe upon or restrict practices because of their religious motivation. . . .’ [Citation.] A law is not generally applicable if it ‘in a selective manner impose[s] burdens only on conduct motivated by religious belief . . . .’ ” (Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 550 [10 Cal.Rptr.3d 283, 85 P.3d 67].) The neutral law of general applicability at issue here is the statutory and common law basis of California’s grand jury process. That this particular grand jury investigation and the subpoenas it generated are directed at a Catholic archdiocese is merely an incidental effect of the grand jury process.

In Matter of Grand Jury Subpoena (Chinske) (D.Mont. 1991) 785 F.Supp. 130, the petitioner claimed that having to comply with a grand jury subpoena would violate his religious beliefs. At oral argument, the petitioner’s attorney “attempted to distinguish Smith ... by claiming that the compulsion to testify before the grand jury is not a law of general application prohibiting certain conduct.” (Id. at p. 133.) Commenting that “[c]ounsel clearly does not appreciate the scope of the Supreme Court’s recent rulings concerning free exercise claims,” the federal court held “Smith clearly does not apply only to cases where the law in question prohibits certain conduct, since the court considered tax collection cases in reaching its decision. [Citation.] The laws of this land compel all persons to pay taxes assessed by various governmental bodies, regardless of their religious convictions, ... In much the same way, the laws of this land compel all persons to testify before the grand jury when subpoenaed to do so . . . .” (Id. at pp. 133-134.) Assuming for the purpose of decision that the petitioner’s religious beliefs were sincere, the court held the free exercise claim was defeated by Smith because any burden on petitioner’s religious beliefs was not the object of the grand jury subpoena, but “ ‘merely the incidental effect of a generally applicable and otherwise valid’ governmental action.” (Id. at p. 134.)

We similarly conclude the grand jury subpoenas here do not violate the free exercise clause of the federal Constitution because they are based on a valid and neutral law of general applicability that will have, at most, an incidental effect on the Archdiocese’s practice of keeping confidential the communications arising out of the archbishop’s formation of clergy obligation of caring for his priests.

c. No violation of the establishment clause of the federal Constitution.

Petitioners contend disclosure of the subpoenaed documents is barred by the establishment clause of the federal Constitution. This claim is without merit because the primary effect of enforcing the subpoenas will not require the government either to interfere with the internal workings of the Archdiocese, or to choose between competing religious doctrines.

“The Establishment Clause provides that ‘Congress shall make no law respecting an establishment of religion... . ’ [Citation.] In Lemon v. Kurtzman, 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105] (1971), the Supreme Court established a three-part test for determining whether a statute violates the Establishment Clause: [(J[] First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion. [Citation.]” (E.E.O.C. v. Catholic University of America (D.C. Cir. 1996) 317 U.S. App. D.C. 343 [83 F.3d 455, 465].) “Although it is difficult to attach a precise meaning to the word ‘entanglement,’ courts have found an unconstitutional entanglement with religion in situations where a ‘protracted legal process pit[s] church and state as adversaries,’ [citation], and where the Government is placed in a position of choosing among ‘competing religious visions.’ [Citation.]” (Ibid.) “Not all entanglements, of course, have the effect of advancing or inhibiting religion. Interaction between church and state is inevitable, [citation], and we have always tolerated some level of involvement between the two. Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” (Agostini v. Felton (1997) 521 U.S. 203, 233 [138 L.Ed.2d 391, 117 S.Ct. 1997].)

The Archdiocese asserts that, under Lemon, “[t]he constitutional question can be simply put: Does the state action (here it is a subpoena) interfere with a religious practice?” The Archdiocese answers this question as follows: “The effect of these subpoenas is to interfere with the bishop’s pastoral and episcopal relationship with his priests in need, to destroy any serious pastoral discussion of deeply personal and intimate concerns of the priests regarding their celibacy, sexuality and emotional and psychological needs, and to ‘foster an “excessive government entanglement with religion.” ’ [Citation.] More specifically, these subpoenas interfere directly with ecclesiastical policy by mandating the disclosure of information that, under Roman Catholic practice, is held in strict confidence.”

The Archdiocese asserts the closest Supreme Court decision to the case at bar is NLRB v. Catholic Bishop of Chicago (1979) 440 U.S. 490 [59 L.Ed.2d 533, 99 S.Ct. 1313], which held the National Labor Relations Board’s (NLRB) exercise of jurisdiction over lay teachers at Catholic high schools presented a significant First Amendment risk. However, the core issue in that case was whether there had been unfair labor practices, and it was this issue which was necessarily entangled with questions of religious doctrine.

However, the core issue in the case at bar is whether children were molested by priests who worked for the Archdiocese, an issue having no comparable religious doctrine aspect.

Also pertinent here is Society of Jesus of New England v. Commonwealth (2004) 441 Mass. 662 [808 N.E.2d 272], in which the Massachusetts Supreme Judicial Court rejected a claim that disclosure of a priest’s personnel file, in connection with a criminal prosecution for sexual assault, would violate the establishment clause. The court explained “With regard to the test of ‘effect’ on religion, we must look at the law’s ‘principal or primary effect,’ Lemon v. Kurtzman, supra, not at its incidental effects. Here, the alleged inhibition on religion is not a ‘principal or primary’ effect of the subpoena, although it may, in a subtle way, provide some disincentive that would arguably discourage accused priests from being totally forthcoming with their superiors. ...[][] Nor does the enforcement of this subpoena result in any excessive government entanglement with religion. The court can decide issues of relevance, burdensomeness, and the applicability of the asserted privileges without having to decide matters of religion or embroil itself in the internal workings of the Jesuits. Indeed, the only form of ‘entanglement’ with religion at issue in the motions to quash is a form that [the priest] and the Jesuits have themselves invited, namely, the court’s consideration whether [the priest’s] communications qualify for protection under the priest-penitent privilege .... Assessment of the applicability of that privilege does not lead to excessive government entanglement in religion.” (Id. at p. 283, fn. omitted, italics added.)

This case is analgous to Society of Jesus of New England v. Com., supra, 808 N.E.2d 272, rather than to NLRB v. Catholic Bishop of Chicago, supra, 440 U.S. 490. We conclude disclosure of the subpoenaed documents to the grand jury will not result in excessive entanglement or any other violation of the establishment clause.

d. “Hybrid rights” exception to Smith not applicable.

Petitioners contend disclosure of the subpoenaed documents would violate the First Amendment because the so-called hybrid rights exception to the Smith rule applies in this case. The Archdiocese argues “the neutrality rule of Smith does not apply” here because “the challenged state conduct interferes with the free exercise of religion and causes excessive entanglement.” This claim is without merit.

As a doctrinal matter, the nature and scope of the so-called hybrid rights exception to Smith is rather nebulous. “The Smith court developed the hybrid claim exception in an effort to explain several past decisions which invalidated on free exercise grounds laws that appeared to be neutral and generally applicable. [Citation.]” (Gary S. v. Manchester School Dist. (D.N.H. 2003) [241 F.Supp.2d 111, 121], fn. omitted, affd. (1st Cir. 2004) 374 F.3d 15, 19.) “The most relevant of the so-called hybrid cases is Wisconsin v. Yoder, 406 U.S. 205, 232-33 [32 L.Ed.2d 15, 92 S.Ct. 1526] (1972), in which the Court invalidated a compulsory school attendance law as applied to Amish parents who refused on religious grounds to send their children to school.” (Brown v. Hot, Sexy and Safer Productions, Inc. (1st Cir. 1995) 68 F.3d 525, 539.) Under the hybrid rights theory, “ ‘the First Amendment [still] bars application of a neutral, generally applicable law to religiously motivated action’ if the law implicates not only ‘the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press[.]’ [Citation.] In such ‘hybrid’ cases, the law or action must survive strict scrutiny.” (San Jose Christian College v. Morgan Hill (9th Cir. 2004) 360 F.3d 1024, 1031.)

However, even assuming a hybrid rights exception to Smith, it would not apply to this case because the Archdiocese merely has combined a free exercise claim with a meritless establishment clause claim. (See Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at p. 559, fn. 15 [“Catholic Charities perfunctorily asserts that its claims under the establishment clause [citation] also justify treating this case as involving hybrid rights. We have, however, already determined that those claims lack merit.”].) Hence, Smith’s “valid and neutral rule of law of general applicability” standard does apply to petitioners’ federal free exercise claim.

e. California free exercise claim is meritless.

Petitioners contend the Smith rule does not apply to a free exercise claim under the California Constitution and that we should apply, instead, the pre-Smith compelling state interest test. However, we conclude that even pursuant to the former strict scrutiny test, under which governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest, disclosure of the subpoenaed documents would not violate petitioners’ rights. Therefore, we need not decide whether Smith applies to California’s free exercise clause.

California’s free exercise clause (Cal. Const., art. I, § 4.) provides “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State.”

The Smith case was decided in 1990. In 2004, the California Supreme Court was faced in Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th 527 with a claim that the pre-Smith test applies to California’s free exercise clause because its language differs from the federal free exercise clause. “Catholic Charities’ final argument for applying strict scrutiny invokes the free exercise clause of the California Constitution. [Citation.] That clause, Catholic Charities contends, forbids the state to burden the practice of religion, even incidentally, through a neutral, generally applicable law, unless the law in question serves a compelling governmental interest and is narrowly tailored to achieve that interest. Catholic Charities asserts, in other words, that we must interpret the California Constitution the same way the United States Supreme Court interpreted the federal Constitution’s free exercise clause in Sherbert, supra, 374 U.S. 398.” (Catholic Charities, at p. 559, fn. omitted.)

Saying that in the proper case it would not have hesitated “to declare the scope and proper interpretation of the California Constitution’s free exercise clause,” Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at page 562 concluded it did not need to do so because the pr e-Smith strict scrutiny test had been met. Catholic Chanties involved the claim by a religiously-connected nonprofit public benefit corporation that it had been impermissibly burdened by the Women’s Contraception Equity Act (WCEA), a law requiring certain health and disability contracts to cover prescription contraceptives. The Supreme Court held “Assuming for the sake of argument the WCEA substantially burdens a religious belief or practice, the law nevertheless serves a compelling state interest and is narrowly tailored to achieve that interest, [¶] The WCEA serves the compelling state interest of eliminating gender discrimination.” (Catholic Charities of Sacramento, Inc. v. Superior Court, supra, 32 Cal.4th at pp. 563-564.)

We reach a similar conclusion here. As the following case law demonstrates, the grand jury’s investigation into suspected child molestation serves a compelling state interest and is narrowly tailored to achieve that interest.

In Branzburg v. Hayes (1972) 408 U.S. 665 [33 L.Ed.2d 626, 92 S.Ct. 2646], in the course of holding that reporters may be required to testify before grand juries about the criminal conduct of their confidential sources, the United States Supreme Court said “Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle [is] that 'the public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege . . . .” (Id. at p. 688, italics added.) “The requirements of those cases, [citation], which hold that a State’s interest must be ‘compelling’ or ‘paramount’ to justify even an indirect burden on First Amendment rights, are also met here. As we have indicated, the investigation of crime by the grand jury implements a fundamental governmental role of securing the safety of the person and property of the citizen, and it appears to us that calling reporters to give testimony in the manner and for the reasons that other citizens are called ‘bears a reasonable relationship to the achievement of the governmental purpose asserted as its justification.’ [Citation.]” (Id. at p. 700, italics added.)

With a nod to Branzburg, many federal cases since have held that compelled testimony before a grand jury in violation of a witness’s religion does not constitute a free exercise violation. We rely on federal cases in this context because (1) before Smith was decided, both the federal and the California free exercise clauses were analyzed under the compelling state interest test (see Walker v. Superior Court (1988) 47 Cal.3d 112, 138-141 [253 Cal.Rptr. 1, 763 P.2d 852]), and (2) we have found no California cases involving free exercise clause claims in a grand jury context.

These federal cases have assumed, for the purpose of decision, that the witness’s objection to testifying was both sincerely held and religiously grounded. Each case concluded the ensuing burden on the witness’s religious belief was outweighed by the compelling state interest in obtaining grand jury testimony. (See In re Grand Jury Empaneling of Special Grand Jury (3d Cir. 1999) 171 F.3d 826, 832 [even if Orthodox Jewish law proscribed giving grand jury testimony against family member, “the government’s interest in securing the evidence” in white collar crime case was “compelling” because “the duty to prosecute persons who commit serious crimes is part and parcel of the government’s ‘paramount responsibility for the general safety and welfare of all its citizens’ ”]; Grand Jury Proceedings of John Doe v. U.S. (10th Cir. 1988) 842 F.2d 244, 247-248 [Mormon belief proscribing intrafamily testimony before grand jury was outweighed by compelling state interest in investigating violation of federal criminal law]; In re Three Children (D.N.J. 1998) 24 F.Supp.2d 389, 392 [“the government’s interest in investigating and successfully prosecuting crimes, which invariably includes taking the grand jury testimony of witnesses, far outweighs the incidental burden on the professed free exercise of religion in this matter.”]; see also Congregation B’Nai Jonah v. Kuriansky (1991) 576 N.Y.S.2d 934, 936 [172 A.D.2d 35, 39] [state’s interest in enforcing subpoenas for Medicaid fraud investigation outweighed infringement on free exercise “Unquestionably, the State has a profound interest in fighting corruption in the Medicaid industry and in enforcing its tax laws [citations].”].)

The Priests also argue that because the “documents pertain to confidential communications of a most private nature between a Roman Catholic bishop and the priests he ordained,” their disclosure “will chill the free exercise of their religion, and inevitably and impermissibly alter the relationship [between] Catholic bishops and priests and the way they practice their religion.”

However, several jurisdictions have rejected similar arguments and we agree with their reasoning. (See People v. Campobello (2004) 348 Ill.App.3d 619 [810 N.E.2d 307, 311-312, 284 Ill.Dec. 654] [Catholic diocese must comply with government subpoena in sexual assault prosecution against priest, even if Canon 489 requires bishop to maintain secret archive for files relating to internal church discipline]; Com. v. Stewart (1997) 547 Pa. 277 [690 A.2d 195, 201-202] [criminal defendant’s compelling interest in fair trial outweighed Catholic diocese’s claim to withhold documents deemed confidential under canon law because “the burden on the Diocese’s religious freedom furthers a compelling governmental interest by the least restrictive means available”]; Society of Jesus of New England v. Commonwealth, supra, 808 N.E.2d 272, 279 [state could subpoena personnel file of priest charged with sexual assault even if such disclosure would inhibit “communications that are necessary to maintain the Jesuits’ relationship with one of its own priests”].)

Hence, we conclude that even if the pre-Smith compelling state interest test governs a California free exercise claim, that test is met here.

f. Conclusions regarding federal and state constitutional contentions.

We are not persuaded by any of petitioners’ freedom of religion arguments. We conclude disclosure of the subpoenaed documents is not barred by the First Amendment to the federal Constitution, or by the free exercise clause of California’s Constitution. Having so determined, we next examine the two principal statutory grounds petitioners rely on to prevent disclosure of the subpoenaed documents to the grand jury, the clergy-penitent privilege and the psychotherapist-patient privilege.

2. Documents in question do not satisfy criteria for application of clergy-penitent privilege, irrespective of the formation of clergy theory.

Evidence Code section 1032, within the article relating to the clergy-penitent privilege, defines a “penitential communication” as “a communication made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who, in the course of the discipline or practice of the clergy member’s church, denomination, or organization, is authorized or accustomed to hear those communications and, under the discipline or tenets of his or her church, denomination, or organization, has a duty to keep those communications secret.” (Italics added.)

Petitioners argue the subpoenaed documents constitute privileged penitential communications within the meaning of Evidence Code section 1032 because they were generated in the course of the formation of clergy process during the Archdiocese’s interventions to help troubled priests.

Petitioners’ contention fails. The penitential communications are not privileged because they were not “made in confidence, in the presence of no third person so far as the penitent is aware,” to a cleric who is obligated “to keep those communications secret.” (Evid. Code, § 1032.)

a. Statutory scheme is controlling.

“Evidence Code section 911 provides, in relevant part: ‘Except as otherwise provided by statute: [¶]... [¶] (b) No person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.’ This section declares the California Legislature’s determination that ‘evidentiary privileges shall be available only as defined by statute. [Citation.] Courts may not add to the statutory privileges except as required by state or federal constitutional law [citations], nor may courts imply unwritten exceptions to existing statutory privileges. [Citations.]’ (Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 373 [20 Cal.Rptr.2d 330, 853 P.2d 496]; see Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656 [125 Cal.Rptr. 553, 542 P.2d 977] [privileges contained in Evidence Code are exclusive and courts are not free to create new privileges as matter of judicial policy unless constitutionally compelled] . . . .” (American Airlines, Inc. v. Superior Court (2003) 114 Cal.App.4th 881, 887 [8 Cal.Rptr.3d 146], italics added.)

“In section 911 of the Evidence Code, the Legislature clearly intended to abolish common law privileges and to keep the courts from creating new nonstatutory privileges as a matter of judicial policy. [Citations.] Thus, unless a privilege is expressly or impliedly based on statute, its existence may be found only if required by constitutional principles, state or federal.” (Welfare Rights Organization v. Crisan (1983) 33 Cal.3d 766, 769 [190 Cal.Rptr. 919, 661 P.2d 1073].)

b. Parties’ respective burdens of proof.

Ordinarily, “[t]he party claiming [an evidentiary] privilege carries the burden of showing that the evidence which it seeks to suppress is within the terms of the statute.” (D. I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 729 [36 Cal.Rptr. 468, 388 P.2d 700]; see, e.g., Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 370 [122 Cal.Rptr.2d 504] [per Chadbourne, Department of Motor Vehicles bore burden of establishing claim of privilege based on Evid. Code, § 1040 (public entity has privilege to resist disclosure of official information)].)

Here, however, it was ultimately the District Attorney’s burden to overcome the presumption of confidentiality.

Evidence Code section 917 provides at subdivision (a) “Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client, physician-patient, psychotherapist-patient, clergy-penitent, husband-wife, sexual assault victim-counselor, or domestic violence victim-counselor relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.” (Italics added.)

Thus, in this context, the privilege-claimant “has the initial burden of proving the preliminary facts to show the privilege applies.” (Story v. Superior Court (2003) 109 Cal.App.4th 1007, 1014 [135 Cal.Rptr.2d 532], italics added.) “Once the claimant establishes the preliminary facts . . . , the burden of proof shifts to the opponent of the privilege. To obtain disclosure, the opponent must rebut the statutory presumption of confidentiality set forth in [Evidence Code] section 917[, subdivision (a).] . . . Alternatively, the opponent of the privilege may show that the privilege has been waived under [Evidence Code] section 912[] . . . .” (Story, supra, at p. 1015, italics added.)

c. Standard of review.

We review the trial court’s privilege determination under the substantial evidence standard. “ ‘ “When the facts, or reasonable inferences from the facts, shown in support of or in opposition to the claim of privilege are in conflict, the determination of whether the evidence supports one conclusion or the other is for the trial court, and a reviewing court may not disturb such finding if there is any substantial evidence to support it [citations].” ’ [Citation.] Accordingly, unless a claimed privilege appears as a matter of law from the undisputed facts, an appellate court may not overturn the trial court’s decision to reject that claim.” (HLC Properites, Limited v. Superior Court (2005) 35 Cal.4th 54, 60 [24 Cal.Rptr.3d 199, 105 P.3d 560], fn. omitted.)

d. Development of Calif ornia’s clergy-penitent privilege.

“The priest-penitent privilege recognizes the human need to disclose to a spiritual counselor, in total and absolute confidence, what are believed to be flawed acts or thoughts and to receive priestly consolation and guidance in return.” (Trammel v. United States (1980) 445 U.S. 40, 51 [63 L.Ed.2d 186, 100 S.Ct. 906].) “The present day clergy-penitent privilege has its origin in the early Christian Church sacramental confession which existed before the Reformation in England. It has evolved over the years into the contemporary ‘minister’s’ privilege adopted in some form in virtually every state of this country. (Yellin, The History and Current Status of the Clergy-Penitent Privilege (1983) 23 Santa Clara L.Rev. 95.)” (People v. Edwards (1988) 203 Cal.App.3d 1358, 1362-1363 [248 Cal.Rptr. 53].)

As noted, California’s clergy-penitent privilege is contained in Evidence Code sections 1030-1034. Before these sections were enacted in 1965, the privilege was defined by Code of Civil Procedure section 1881, subdivision (3), which provided “A clergyman, priest or religious practitioner of an established church cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.” (Italics added.) The current statute makes no reference to confessions, and instead provides an evidentiary privilege for “ ‘penitential communication.’ ” (Evid. Code, § 1032.)

e. For clergy-penitent privilege to attach, requirements of Evidence Code section 1032 must be satisfied.

The central provision of California’s clergy-penitent privilege is Evidence Code section 1032, which defines a penitential communication as a confidential communication made to a clergy person who is authorized to hear and obligated to keep secret such communications.

However, even with the privilege centered on a “communication,” rather than on a “confession,” not every statement made to a member of the clergy is privileged. “In order for a statement to be privileged, it must satisfy all of the conceptual requirements of a penitential communication: 1) it must be intended to be in confidence', 2) it must be made to a member of the clergy who in the course of his or her religious discipline or practice is authorized or accustomed to hear such communications; and 3) such member of the clergy has a duty under the discipline or tenets of the church, religious denomination or organization to keep such communications secret. (§ 1032; 2 Jefferson, Cal. Evidence Benchbook (2d ed. 1982) § 39.1, pp. 1405-1407.)” (People v. Edwards, supra, 203 Cal.App.3d at pp. 1362-1363, italics added.)

f. Petitioners’ theory as to why clergy-penitent privilege is applicable.

Mindful of the criteria of Evidence Code section 1032 requiring a communication to be made in confidence, in the presence of no third person, to a member of the clergy who is authorized to hear the communication and who, under the tenets of the church, has a duty to keep said communication secret, the petitioners invoke the Roman Catholic church’s formation of clergy doctrine. They presented evidence, post, showing that pursuant to this religious doctrine, a bishop is charged with the obligation to care for the physical, spiritual, emotional and psychological well-being of the priests within his diocese. Further, the obligation imposed by this doctrine includes intervention with priests who are experiencing problems related to celibacy and sexuality, including an “intervention interview” with the accused priest. The evidence also showed the Archdiocese encouraged priests to discuss such problems with Cardinal Mahony and the Vicar for Clergy.

The Archdiocese argues the challenged subpoenaed documents fall within California’s clergy-penitent privilege because they were confidential communications made in the course of troubled-priest interventions, and under the tenets of the church, Cardinal Mahony and the Vicar for Clergy were authorized to hear the communications and obligated to keep them secret. The Archdiocese also presented evidence the interventions with troubled priests depend on the troubled priests’ understanding the communications will be held in confidence within the church.

g. Subject communications do not meet criteria of Evidence Code section 1032.

Petitioners’ theory conflicts with Evidence Code section 1032, which defines a “penitential communication” as “a communication made in confidence, in the presence of no third person so far as the penitent is aware,” to a clergy person who must keep the communication secret. (Italics added.)

The record demonstrates the participants in the Archdiocese’s troubled-priest interventions knew any communications likely were to be shared with more than one person. According to the Archdiocese’s declared policy, priests experiencing psychological and sexual problems were encouraged to discuss those problems with the archbishop and the Vicar for Clergy. Furthermore, the subpoenaed documents themselves amply demonstrate that communications to and from the individual priests were routinely shared by Cardinal Mahony, whoever happened to be the current Vicar for Clergy, and sometimes other Archdiocese employees as well.

This sharing of information violates Evidence Code section 1032’s requirement that the penitent’s communication be “made in confidence, in the presence of no third person so far as the penitent is aware,” to a cleric who is obligated “to keep those communications secret.” The fact both parties to the original communication knew it likely would be transmitted to a third person vitiated ab initia any privilege under Evidence Code section 1032, or, alternatively, constituted a waiver of the privilege under Evidence Code section 912, subdivision (a).

Here, the record demonstrates the District Attorney met the burden of rebutting Evidence Code section 917’s presumption of confidentiality by proving the Priests were aware the communications were likely to be transmitted to third persons.

The Archdiocese argues these communications were not transmitted “to any third party, that is, someone outside of the bishop (or his alter ego, the Vicar for Clergy).” The contention is unavailing. We reject the argument that just because Cardinal Mahony considers the Vicar for Clergy his surrogate for dealing with troubled priests, there was no violation of Evidence Code section 1032’s requirement that the communication be “made in confidence, in the presence of no third person so far as the penitent is aware, to a member of the clergy who . . . has a duty to keep those communications secret.”

With respect to the various documents here in issue, discussed, ante, the referee held none was shielded by the clergy-penitent privilege. Guided by the principles set forth, ante, we uphold the referee’s rulings in their entirety as follows.

Doe 1 No. 16-17; This is a letter from Cardinal Mahony to a priest. The referee reasonably could conclude the three numbered subparagraphs of this letter did not constitute penitential communications because they merely notified the priest of certain administrative decisions made by the Archdiocese. In any event, the entire letter is not covered by the clergy-penitent privilege because it was not sufficiently confidential. Not only did the priest know such communications were likely to be shared with the Vicar for Clergy, but the letter itself announced a copy was being sent to the Vicar.

Doe 1 No. 50-52: This document consists of a letter from a priest to the Vicar for Clergy, and a cover memorandum from the Vicar transmitting the priest’s letter to Cardinal Mahony. The referee reasonably could conclude the letter was not within the clergy-penitent privilege because it merely discussed administrative actions taken by the Archdiocese, asked for legal information and suggested future job assignments. Furthermore, the letter was not sufficiently confidential to constitute a penitential communication because the priest knew it was likely to be shared with a third person. Further, the cover memorandum does not constitute a penitential communication because it does not contain any information transmitted to or from the priest.

Doe 1 No. 80: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, reporting on a conversation with a priest. The referee reasonably could conclude this document did not constitute a penitential communication because it merely reported on the priest’s cooperation with his therapists, strategized about possible legal problems and discussed church assignments. Moreover, the letter was not within the clergy-penitent privilege because it was not sufficiently confidential in that the parties to the communication knew it likely would be transmitted to a third person.

Doe 1 No. 397-400: This document consists of dated file notes containing summaries and verbatim excerpts from other subpoenaed documents:

The December 24, 1986, entry is a summary of Doe 1 No. 16-17, which we have concluded does not fall within the clergy-penitent privilege. The same result applies to this summary of that document.

The June 22, 1987, entry is a summary of Doe 1 No. 80, which we have concluded does not fall within the clergy-penitent privilege. The same result applies to this summary of that document.

Doe 2 No. 13: This is a letter to Cardinal Mahony’s predecessor from an official of the Archdiocese then responsible for ministering to troubled priests. The referee reasonably could conclude this document did not constitute a penitential communication because it merely related an event in the priest’s personal history.

Doe 2 No. 23: This is a memorandum to the file, written by the Vicar for Clergy, reporting on a third person’s observation and evaluation of a priest’s conduct in a particular situation. The referee reasonably could conclude this document did not constitute a penitential communication because it merely related an event in the priest’s personal history.

Doe 2 No. 31-32: This is a memorandum from the Vicar for Clergy to Cardinal Mahony. The Archdiocese is only objecting to two paragraphs of this document. The third paragraph merely repeats communications, contained in Doe 2 No. 13 and Doe 2 No. 23, which we have concluded do not fall within the clergy-penitent privilege. The same result applies to this summary of those documents. The referee reasonably could conclude the information contained in the seventh paragraph of the memorandum did not constitute a penitential communication because it merely related an incident in the priest’s personal history. In any event, the entire memorandum was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.

Doe 2 No. 34: This is a memorandum from a member of the Vicar for Clergy’s staff to the Vicar for Clergy. A copy of the memorandum was transmitted to another member of the Vicar for Clergy’s staff. The referee reasonably could conclude the document was not a penitential communication because it merely related incidents in the priest’s personal history and offered an evaluation of the priest’s situation. The document does not constitute a penitential communication because it does not contain any information transmitted to or from the priest. In any event, the memorandum was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.

Doe 2 No. 79: This is a letter from Cardinal Mahony to a priest, responding to a letter from the priest. A copy of Cardinal Mahony’s letter was transmitted to the Vicar for Clergy. The letter was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.

Doe 2 No. 140: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, advising him of a conversation a member of the Vicar’s staff had with a priest and the priest’s psychotherapist. The referee reasonably could conclude this document did not constitute a penitential communication because it was merely a status report concerning the priest’s progress in psychotherapy. In any event, the document was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.

Doe 2 No. 172: This is a memorandum from the Vicar for Clergy to Cardinal Mahony, discussing the establishment of an aftercare program for when a priest completes psychotherapy. The document was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person. The document does not constitute a penitential communication because it does not contain any information transmitted to or from the priest.

Doe 2 No. 183: This is a letter from the Vicar for Clergy to a priest. The referee reasonably could conclude the document did not constitute a penitential communication because it was largely taken up with administrative matters and any penitential aspect was insignificant. Moreover, the document was not sufficiently confidential to constitute a penitential communication in that the parties to the communication knew it likely would be transmitted to a third person.

Doe 2 No. 278: This document consists of excerpts from three of the documents discussed, ante (Doe 2 Nos. 140, 172 & 183), which we have concluded do not fall within the clergy-penitent privilege. The same result applies to these excerpts of those documents.

In sum, we conclude that none of the particular subpoenaed documents challenged by the Archdiocese falls within California’s clergy-penitent privilege, and we affirm all of the referee’s rulings in this regard.

3. Application of psychotherapist-patient privilege to Archdiocese’s cla