1 2 3 4 5 6 7 8 9 10 11 12 13 Defendants, 14 15 16 17 18 19 20 21 22 23 24 25 I. RELIEF REQUESTED v. CORPORATION OF THE CATHOLIC ARCHBISHOP OF SEATTLE d.b.a.

THE ARCHDIOCESE OF SEATTLE, and EASTSIDE CATHOLIC SCHOOL, MARK R. ZMUDA, Plaintiff, No. DEFENDANT EASTSIDE CATHOLILC SCHOOLS MOTION TO DISMISS PURSUANT TO CR 12(b)(6) SUPERIOR COURT OF WASHINGTON FOR KING COUNTY Hearing Date/Time:

Plaintiffs action should be dismissed because the Court does not have jurisdiction to adjudicate Plaintiffs claims without violating the First Amendment. 26.04.020 explicitly prevents Plaintiff from bringing civil causes of action. II. FACTS In addition, RCW

The following facts are taken from the Complaint for purposes of Eastside Catholics CR 12(b)(6) motion. Eastside Catholic, however, does not agree to or concede these facts for any purpose other than to include them as context for the instant motion. See Reid v. Pierce County, 136 Wn.2d 195, 201, 961 P.2d 333 (1998). Eastside Catholic hired Plaintiff as its vice principal in May 2012. Pl.s Compl. 5. When Plaintiff was hired, he signed and was bound by the Employee Handbook referenced
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throughout the Complaint. See Pl.s Compl. 6, 35, 68. Plaintiff references page nine which contains a section regarding discrimination as well as a section entitled Role of Canon Law. On that page, Eastside Catholic states that Plaintiffs role requires him to serve the legitimate Roman Catholic religious value of providing a suitable Catholic education for children and that the school is subject to certain requirements of Canon law established by the Catholic Church. See Pl.s Compl. 35, 68. Plaintiff also references page six of the handbook which contains a section stating that the school leadership will [g]uide students by using the teachings of the Catholic Church and loving example of Jesus Christ. See Pl.s Compl. 69. When Plaintiff was hired, he was not married to his male partner. Pl.s Compl. 6. Plaintiff married his male partner on July 6, 2013, but did not initially disclose the marriage to Eastside Catholic. Pl.s Compl. 12-13. In November 2013, Eastside Catholic learned that Plaintiff and his male partner had married, and Plaintiff confirmed that they possessed an official marriage certificate from the State of Washington. Pl.s Compl. 18-23. According to Plaintiff, the Archbishop J. Peter Sartain made the decision that Plaintiff could no longer work at Eastside Catholic if he was married to his male partner. Pl.s Compl. 24. Plaintiff was aware that his marriage was against Catholic teachings and principles. See

16 e.g. Pl.s Compl. 27. Plaintiff filed this lawsuit alleging that he was discriminated against 17 because he married someone of the same sex, an action against Catholic teachings and 18 19 20 21 22 23 24 25
It is Eastside Catholics view that Plaintiffs first cause of action, Tortious Interference with Business Expectancy is only alleged against the Archdiocese of Seattle. PATTERSONBUCHANAN DEFENDANT EASTSIDE CATHOLICS MOTION TO F O BES&LEITCH,INC.,P.S. DISMISS PURSUANT TO CR 12(b)(6)- 2
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principles. See gen. Pl.s Compl. The four causes of action directed at Eastside Catholic include the following: Violation of Washingtons Law Against Discrimination; Breach of Implied Contract/Promissory Estoppel; Wrongful Termination in Violation of Public Policy; and Violation of the Consumer Protection Act.1

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III.

ISSUE PRESENTED

Under CR 12(b)(6), should the Court dismiss Plaintiffs five causes of action because the court cannot adjudicate the claims without violating the First Amendment? Under CR 12(b)(6), should the Court dismiss Plaintiffs five causes of action because RCW 26.04.020 explicitly prohibits Plaintiff from bringing civil causes of action? IV. EVIDENCE RELIED UPON

Plaintiffs Complaint for Damages (Complaint). V. LEGAL AUTHORITY

Eastside Catholic moves for dismissal under CR 12(b)(6) because Plaintiffs claims relate to Catholic doctrine and cannot be heard by a civil court as a matter of law and Plaintiffs claims are excluded under RCW 26.04.020. When a plaintiff fails to state a claim upon which relief can be granted, plaintiffs claims should be dismissed. See CR 12(b)(6). Specifically, courts should dismiss a claim under 12(b)(6) when it appears beyond a reasonable doubt that no facts exist that would justify recovery. Cutler v. Phillips Petro. Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). Dismissal of a claim is appropriate when the complaint does not allege the necessary facts that could justify recovery. Wright v. Jeckle, 104 Wn. App. 478, 481, 16 P.3d

16 1268 (2000). 17 A. 18 19 20 21 22 23 24 25 Under CR 12(b)(6), Plaintiffs claims should be dismissed because the Court cannot adjudicate the claims without violating the First Amendment.

Adjudicating Plaintiffs claims would impermissibly entangle the Court in Catholic doctrine. In order to make a discrimination determination, the Court would be forced to delve into Catholic doctrine on the definition of marriage. Such action would impermissibly violate the First Amendments Free Exercise and Establishment Clauses. When liability is not

predicated on secular conduct and involves the interpretation of church doctrine or religious beliefs, constitutional principles are offended. C.J.C. v. Corp. of the Catholic Bishop of

Yakima, 138 Wn.2d 699, 728, 985 P.2d 262; Germain v. Pullman Baptist Church, 96 Wn. App.
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826, 836, 980 P.2d 809 (1999); Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N.A., 344 U.S. 94, 114, 49 L. Ed. 2d 151, 96 S. Ct. 2372 (1952). Courts are prohibited from interfering with a religious institutions First Amendment right to make its own decisions relating to matters of faith and doctrine. See Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 293, 2003 Ind. LEXIS 709 (2003) (citing Bryce v. Episcopal Chruch, 289 F.3d 648, 655 (2002)). Courts have also held that they must dismiss causes of action that would require them to explore a religious institutions employment decisions. See e.g. Bollard v. California Province of the Socy of Jesus, 196 F.3d 940 (9th Cir. 1999); McClure v. Salvation Army, 460 F.2d 553, 559 (5th Cir. 1972). 1. Plaintiffs claims fail because the Court is prohibited from interfering with disputes concerning faith and doctrine.

Where an underlying dispute is in no way secular and is one of faith and doctrine, a court cannot review. See Jones v. Wolf, 443 U.S. 595, 602, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979) (where issue was completely secular because it related to a property dispute with no underlying dispute of faith or ecclesiastical rule); Kedroff, 344 U.S. at 115 (where decision on who could occupy the church was strictly a matter of ecclesiastical government). Plaintiffs claims are in no way secular because every cause of action in his Complaint relates to his marriage to his male partner. Thus, the First Amendment prohibits the Courts interference in this non-secular issue. i. The Establishment clause would be violated if the Court heard this matter.

Adjudicating this matter would violate the First Amendments Establishment clause which prohibits government entanglement with religion. The Establishment clause prohibits all 22 laws respecting the establishment of religion. U.S. Const. amend. I. 23 24 25 All of Plaintiffs claims fail because maintaining jurisdiction over the claims would require the Court to impermissibly entangle itself in matters of church doctrine and practice. See Gates v. Catholic Archdiocese, 103 Wn. App. 160, 169, 10 P.3d 435 (2000). All of
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Plaintiffs claims are premised on his allegation that he was discriminated against because Eastside Catholic will not employ a person if that person is married to someone of the same sex because such marriage contravenes Catholic doctrine and practice. See Pl.s Compl. 27. In Gates v. Catholic Archdiocese, the plaintiff assisted the pastor with music for the parish. Gates, Wn. App. At 161. The plaintiff alleged that he was constructively discharged by the pastor because the pastor threatened to discipline him if he failed to perform additional work asked of him. Id. at 165. The court held that the Superior Court did not have jurisdiction over the dispute without the court inevitably entangling itself in matters of church doctrine and practice. Id. at 169. It reasoned that any employment case arising from church controversy, where ecclesiastical or doctrinal issues are involved, is outside of the courts jurisdiction. Id. at 167-168 (citing Org. for Preserving the Constitution of Zion Lutheran Church v. Mason, 49 Wn. App. 441, 445-446, 743 P.2d 848 (1987)). According to Canon law, the pastor had authority over the plaintiffs workload and a secular court could not hear the claim without assuming the power to reorganize the essential principles of the church, an undertaking forbidden by the First Amendment. Gates, Wn. App. At 169. Similarly, this Court does not have jurisdiction over the dispute without requiring the

16 Court to entangle itself into matters of church doctrine and practice in violation of the First 17 Amendment. Like the parish in Gates, Eastside Catholic is a Catholic institution. See Pl.s 18 19 20 21 22 23 24 25 Compl. 4. Also, like in Gates where a doctrinal issue was involved, a doctrinal issue is also involved here. In Gates, it was a pastors power to oversee the plaintiffs workload; here, it is a Catholic institutions decision regarding employment of a person married to someone of the same sex in contravention of Catholic doctrine. See Pl.s Compl. 25. As previously stated, all of Plaintiffs claims arise from Plaintiffs contention that he was discriminated against because he was not able to work for Eastside Catholic if he was married to a person of the same sex. See Pl.s Compl. 27, 31. Since Eastside Catholics employment decision, that

Plaintiffs marriage contravenes Catholic doctrine, is wholly doctrinal, it would be impossible

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for the Court to hear this case without necessarily entangling itself in Catholic doctrine, directly violating the First Amendment. ii. The Free Exercise clause would be violated if the Court heard this matter.

Adjudicating this matter would also violate the First Amendment guarantee of free exercise of religion. The Constitution recognizes that government action violates the First Amendment when it interferes with a believers ability to practice his or her faith, and when it encroaches on the ability of an organization to manage its internal affairs. See e.g. Kedroff, 344 U.S. at 116 (Free Exercise Clause protects power of religious organizations to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine); Bollard, 196 196 F.3d at 945. This Courts interference in Eastside Catholics decision on whether to employ a person married to someone of the same sex, a violation of Catholic doctrine, would encroach on Eastside Catholics ability to manage its internal affairs. In Ockletree v. Franciscan Health System, Washington Supreme Court opined that the religious employer exemption in Washingtons Law Against Discrimination (WLAD) is constitutional and accommodates the broad protections to religious freedoms afforded by Washingtons article I, section 11. Ockletree v. Franciscan Health Sys., 2014 Wash. LEXIS 76, 24, 2014 WL 465423. In that case, the plaintiff was an African American security guard for Franciscan Health System (FHS) and suffered a stroke rendering him unable to perform the essential functions of the job. Ockletree Wash. LEXIS at 3. As a result, FHS terminated his employment. Id. Among other claims, the plaintiff brought a WLAD claim against FHS on the basis of race and disability. Id. FHS argued that, as a nonprofit religious organization, it was exempt from WLAD because WLADs definition of employer explicitly excluded nonprofit religious organization. Id.; RCW 49.60.040(11). The plaintiff challenged the exemption as unconstitutional under
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article I, section 11, and article II, section 12 of the state and federal constitutions. Id. The District Court certified questions to the Washington Supreme Court asking whether the exemption was unconstitutional, and if not, was the exemption unconstitutional as applied to an employee claiming the religious nonprofit organization discriminated against him for reasons unrelated to religion. Id. at 2. The Court held that the religious exemption was constitutional because under article I, section 12 (Privileges and Immunities Clause), WLAD does not involve a privilege or immunity, and under article I, section 11 (Establishment Clause), WLAD does not involve the appropriation of money or application of property. Id. at 31. In its analysis of article I, section 12, the Court noted that the legislature reasonably excluded religious organizations, rather than attempting to reconcile Washingtons growing list of protected categories with the numerous religious belief systems. Id. at 25. 2 Just as including religious organizations like Eastside Catholic under WLAD may implicate Eastside Catholics constitutional religious freedom, the same can be said about permitting Plaintiff to pursue his other claims. The very issue the legislature identified with WLAD, that is, the conflict between Washingtons growing list of protected categories, and a religious organizations beliefs system, is present here. The Court would be required to

16 examine the Catholic doctrine that only permits marriage between a man and a woman which 17 would impermissibly require the Court to delve into doctrine and Eastside Catholics religious 18 19 20 21 22 23 24 25
It should be noted that Plaintiff asserts a WLAD claim. See Pl.s Compl. p. 6. Without reference to the arguments outlined in this motion, given Ockletree and the plain language of RCW 49.60.040, which excludes religious organizations like Defendant, his WLAD claim is without merit and is improperly before the Court. PATTERSONBUCHANAN DEFENDANT EASTSIDE CATHOLICS MOTION TO F O BES&LEITCH,INC.,P.S. DISMISS PURSUANT TO CR 12(b)(6)- 7
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teachings. Accordingly, the free exercise clause will be violated if Plaintiff is permitted to pursue his claims. If this Court hears this matter and Plaintiff prevails, it would create a difficult situation for religious organizations in the future. That is, all religious institutions would be forced to choose between adhering to Church doctrine or potentially exposing themselves to civil liability. Such outcome would be detrimental to religious institutions.
2

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2.

Plaintiffs claims also fail because the Court cannot adjudicate the substance of the claim where Plaintiff is considered a minister.

When an employee is considered a minister, the court cannot hear the claims involving the employment relationship between a religious institution and that employee. Fontana v. Diocese, 138 Wn. App. 421, 425, 157 P.3d 443 (2007) (quoting Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007). Courts seek to insulate the relationship between a religious organization and its ministers from constitutionally impermissible interference by the government. Bollard, 196 F.3d at 946. Courts examine the circumstances of a persons employment to determine if the exception applies. Hosanna-Tabor Evangelical Lutheran Church & Sch. V. EEOC, 132 S. Ct. 694, 707, 181 L. Ed. 2d 650, 2012 LEXIS 578 (2012). For example, in Alcazar v. Archbishop of Seattle, plaintiffs duties

included maintenance of the Church grounds. Alcazar v. Corp. of the Catholic Archbishop of Seattle, 627 F.3d 1288, 1292, 2010 U.S. App. LEXIS 25233. In Hosanna-Tabor v. EEOC, plaintiffs duties included a role of a lay teacher who taught mostly secular courses, and in Fontana v. Diocese, plaintiffs duties did not include priest ordination. Fontana, 138 Wn. App. at 427; Hosanna-Tabor, 132 S. Ct. at 700. In Fontana, the Catholic Diocese of Yakima hired the plaintiff as director of evangelization. Fontana, 138 Wn. App. At 423. The plaintiffs job involved, for example, forming programs in Christian discipleship, Scripture, and spirituality, in order to prepare every Catholic for ministry. Id. Although not an ordained minister, the court held that the plaintiff was a minister because of the function of his position. Id. at 427. The court reasoned that the focus should not be on whether a person is ordained but instead what the position entails. Id. at

21 426 (citing Equal Employment Opportunity Commn v. Roman Catholic Diocese, 213 F.3d 173, 22 175 (1999)). 23 24 25 Like Fontana, Plaintiffs case is barred case as well. Just as the plaintiff in Fontana was not an ordained minister, Plaintiff is not an ordained priest, yet the exception applies. Plaintiffs role as vice principal of a Catholic institution necessarily includes duties related to
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the Catholic teachings. For example, page 9 of the Employee Handbook which Plaintiff referenced for the section on nondiscrimination, also includes a section on the Role of Canon Law. See Pl.s Compl. 35. It specifically states that Plaintiffs role requires him to serve the legitimate Roman Catholic religious value of providing a suitable Catholic education for children and that the school is subject to certain requirements of Canon law established by the Catholic Church. Accordingly, Plaintiffs claims must be dismissed as barred due to this religious exemption. B. Under CR 12(b)(6), Plaintiffs claims should be dismissed because RCW 26.04.020 explicitly prohibits Plaintiff from bringing civil causes of action.

Eastside Catholic notes that Plaintiff is also prohibited from bringing claims because RCW 26.04.020 provides it immunity. RCW 26.04, et seq. governs marriage in Washington. Under RCW 26.04.020(6), religiously affiliated educational institution[s] are immune from civil claims, including claims pursuant to RCW 49.60. RCW 26.04.020(6). Religious

institutions cannot be required, for example, to provide privileges related to the celebration of a 15 16 17 18 19 20 21 22 23 24 25
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marriage. Id. Plaintiffs claims center on his right to marry. See e.g. Pl.s Compl. 7, 82. Under RCW 26.04.020, Eastside Catholic, as a religiously affiliated educational institution, is not required to acknowledge his marriage, and Plaintiff is prohibited from filing suit. For instance, the statute specifically references RCW 49.60, WLAD, which means that Plaintiff cannot make a WLAD claim. Given the clear language of the statute precluding civil claims against Eastside Catholic, all of Plaintiffs claims should be dismissed.

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VI.

CONCLUSION

For the foregoing reasons Eastside Catholic respectfully requests this Court grant the

DATED this _____ day of March, 2014. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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PATTERSON BUCHANAN FOBES & LEITCH, INC., P.S.

By:______________________________________ Michael A. Patterson, WSBA 7976 Andrew M. Weinberg, WSBA 36838 Of Attorneys for Eastside Catholic School