Purdum v. Purdum ( 2013 )

Green, J.:

In this defamation case, Stephen E. Purdum sued his former wife, Katherine C. Harcsar, for allegedly libelous statements she made to the Archdiocese of Kansas City in Kansas. These alleged defamatory statements were made to the Archdiocesan Tribunal when Harcsar sought to annul her sacramental marriage to Purdum. Harcsar moved to dismiss Purdum’s defamation action under K.S.A. 60-212(b)(6) for failure to state a claim upon which relief can be granted. She maintained that because the statements were made in foe context of the annulment action, they were absolutely privileged as part of a “quasi-judicial proceeding.” Before ruling on Harcsar’s motion to dismiss, the trial court, with the parties’ consent, solicited the Archdiocese for input as amicus curiae.

The Archdiocese submitted an amicus brief in favor of dismissal, although on somewhat different grounds. It argued that the defamation action should be dismissed under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction because it impermissibly interfered with the free exercise of religion under the First Amendment to the United States Constitution, that the statements were absolutely privileged, and that the suit ran afoul of the church autonomy doctrine. The Archdiocese further argued that church autonomy doctrine prevented the courts from reviewing or interfering with church affairs that involve faith, doctrine, governance, and policy.

When foe trial court denied Harcsar’s motion to dismiss, foe Archdiocese moved to intervene and to become a party in foe action. In its motion to intervene, the Archdiocese argued that foe church autonomy doctrine prevented foe trial court from exercising subject matter jurisdiction over the action. After reviewing foe briefs and hearing arguments, the trial court again rejected the Archdiocese’s argument based on the church autonomy doctrine and also denied its motion to intervene. In rejecting the church autonomy doctrine, the trial court recognized that no claims were made against the church, that the statements about Purdum’s mental condition were secular in .nature, and that determining tire truth or falsity of such statements would not require interpretation of ecclesiastical doctrine or other such entanglement with the church. Nevertheless, the trial court held that the alleged defamatory statements were made in the context of a written statement to the Archdiocese, an activity that was “absolutely privileged as made pursuant to the defendant’s First Amendment right to, Free Exercise of her religion.” As a result, tire trial.court dismissed the defamation action against Harcsar for lack of subject matter jurisdiction under K.S.A. 60-212(b)(1).

On appeal, Purdum argues that the trial court erred by holding that the statements made in Plarcsar’s petition for annulment were absolutely privileged. Thus, he asserts that the trial court erred by finding that it lacked subject matter jurisdiction as a result of absolute privilege. This court agrees. Nevertheless, when a trial court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007).

Here, Harcsar’s alleged defamatory statements are inextricably part of the Archdiocesan Tribunal. Moreover, Purdum conceded that the only defamatory publication allegedly made by Harcsar was made to the Archdiocesan Tribunal, within its ecclesiastical procedure. Harcsar raised defenses of consent and qualified privilege to the allegedly defamatory statements she made to the Archdiocesan Tribunal. Purdum’s suit thus would require the civil courts to interpret canon law concerning Plarcsar’s consent defense. Harcsar’s consent defense and her qualified privilege defense would excessively entangle the civil courts in a matter that the First Amendment to the United States Constitution forbids. Because tire Establishment Clause of the First Amendment precludes jurisdiction over the subject matter of Purdum’s defamation action, this court determines that the trial court properly concluded drat the First Amendment precluded its exercise of subject matter' jurisdiction in this defamation action.

Facts

As stated earlier, the trial court dismissed Purdum’s defamation action against Harcsar for lack of subject matter jurisdiction under K.S.A. 60-212(b)(1). The parties did not dispute the material facts upon which the trial court relied in dismissing the case, nor do they dispute those factual assertions for purposes of this appeal.

Purdum and Harcsar were married on April 25, 1993, in New Jersey. Before marrying, Purdum and Harcsar completed and signed the prenuptial inquiry prescribed by the Catholic Church. Moreover, in this inquiry, they both stated that they understood and consented to the obligations for a Catholic marriage. Under paragraph “44” of Exhibit C-l, it addressed Purdum’s and Harc-sar’s consent to the authority of the Catholic Church over their marriage:

“Both spouses assent to the authority of the Catholic Church over their marriage by their free request to be married within the Catholic Church. This assent endures if one or both of the spouses later asks the Church to declare the invalidity of tire same marriage. In other words, if the marriage is sacramentally celebrated within the Catholic Church, the Catholic Church has jurisdiction over not only the preparation for and liturgical celebration of the sacrament of marriage, it also has jurisdiction over the judicial process to discern whether there were defects in die marriage that warrant an ecclesiastical declaration of invalidity. Nonetheless, participation in the tribunal process is voluntary and uncoerced.”

The record indicates that “ when [a] non-Catholic spouse voluntarily enters into the process of spiritual and religious preparation for sacramental marriage, that person freely submits to the jurisdiction of the Church as regards the celebration and oversight of the sacrament of marriage.’ ” He or she is told about the jurisdiction of the church. For example, under Purdum’s prenuptial inquiry, he was asked the following question: “Are you giving your consent to this marriage freely, without force or fear of any kind?” Purdum answered “Yes” to that question. At the end of Purdum’s prenuptial inquiry, a priest/deacon and Purdum signed the inquiry. The priest/deacon affirmed that he had instructed Purdum “according to the prescripts of Canon Law and the regulations of the Diocese.”

Purdum filed for divorce in Johnson County in late 2001, and the divorce was granted about 6 years later. Harcsar apparently wished to remarry in a Catholic ceremony. The Catholic Church will allow a later marriage when an annulment is granted for any previous marriage. Thus, before Harcsar could remarry in a Catholic ceremony, she needed to obtain an annulment of her marriage to Purdum.

In February 2009, Harcsar filed a petition for annulment with the Archdiocesan Tribunal. As provided in the mies for the Tribunal, the Archdiocese sent a copy of the petition to Purdum and informed him that he could participate in the annulment proceeding if he wanted. Persons affiliated with the Archdiocese read the petition in connection with the annulment process. The petition and the process are confidential. Only church officials directly involved in that process would be privy to the information contained in the petition.

In his civil suit, Purdum alleged that the statements Harcsar made about him in her annulment petition were false and defam-atoiy. His amended petition described briefly the nature of the alleged defamation as an assertion that he had been “diagnosed as bipolar.” The suit contends that Harcsar knew those statements to be false. The amended petition made no claim against the Archdiocese or any of its employees, agents, or members of tire Tribunal.

With the consent of Purdum and Harcsar, the trial court invited the Archdiocese to appear in the case as amicus curiae because tire dispute arose out of an annulment of a sacramental marriage. In tlrat capacity, the Archdiocese filed a brief urging dismissal of the suit based on privilege and church autonomy. The Archdiocese tiren moved to intervene as a party as a matter of right under K. S. A. 60-224(a)(2). As an exhibit to the request to intervene, the Archdiocese submitted a motion to dismiss Purdum’s suit under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction. Harcsar endorsed and incorporated the arguments made in tire Archdiocese’s motion to dismiss as her own arguments. The motion to dismiss focused on various theories grouped under the church autonomy doctrine. The trial court ultimately denied the Archdiocese’s request to intervene but ruled on the substantive arguments that the Archdiocese had raised for dismissing Purdum’s suit. In its memorandum decision, the trial court ruled that church autonomy doctrine did not warrant dismissal of the defamation action. But the trial court ruled that the Free Exercise Clause of the First Amendment to the United States Constitution afforded Harcsar an absolute privilege against liability for her statements to the Archdiocesan Tribunal.

Did the Trial Court Err in Dismissing Purdum’s Defamation Claim for Lack of Subject Matter Jurisdiction Based on an Absolute Privilege under the First Amendment to the United States Constitution?

Purdum maintains that the trial court’s holding that Harcsar’s alleged defamatory statements were absolutely privileged under the First Amendment was unjustified. Moreover, he contends that the trial court compounded this error in holding that it lacked subject matter jurisdiction as a result of the absolute privilege. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Kansas Medical Mut. Ins. Co. v. Svaty, 291 Kan. 597, 609, 244 P.3d 642 (2010).

On the other hand, Harcsar, endorsing and incorporating the briefs and exhibits filed by the Archdiocese as her own briefs and exhibits, contends that because an absolute privilege existed under the Free Exercise Clause of the First Amendment and that because Purdum’s defamation action would entangle the civil courts in an ecclesiastical subject matter contrary to the church autonomy doctrine, this divested the trial court of subject matter jurisdiction.

At the outset, this court notes that the trial court dismissed Purdum’s defamation action under K.S.A. 60-212(b)(1) for lack of subject matter jurisdiction because the First Amendment to the United States Constitution prohibited the trial court from adjudicating this matter. Under the Federal Rules of Civil Procedure, a Rule 12(b)(1) motion goes to the court’s “ Very power to hear the case.’ ” Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997).

Religious Guaranty under the First Amendment

The religious guaranty under the First Amendment is divided into two parts: (1) the Establishment Clause and (2) the Free Exercise Clause. These clauses draw a line between church and state in two important ways. First, the Establishment Clause states: “Congress shall make no law respecting an establishment of religion.” Based on the language of this clause, Congress remains free to legislate on matters about religion (for example, the excusing of religious pacifists from military service), but Congress cannot enact any legislation advancing a matter “respecting an establishment of religion.”

Yet, tire reach of the Establishment Clause is not limited to forbidding an established church. This Clause imposes a requirement of official neutrality in religious disputes, which the United States Supreme Court has characterized as one of “benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” Walz v. Tax Commission of New York, 397 U.S. 664, 669, 90 S. Ct. 1409, 25 L. Ed. 2d 697 (1970).

Second, the Free Exercise Clause “withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion”; it protects the right of “religious liberty in tire individual” to practice one’s faith unrestricted by civil authority. School Dist. v. Schempp, 374 U.S. 203, 222-23, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963).

The First Amendment religious clauses are applicable to the states by virtue of die Fourteenth Amendment to the United States Constitution. Moreover, the First Amendment applies to judicial power. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190, 191, 80 S. Ct. 1037, 4 L. Ed. 2d 1140 (1960).

The threshold inquiry here is whether the underlying dispute is a secular one, capable of review by a civil court, or an ecclesiastical one about “discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976).

Free Exercise Clause

In ruling that defendant’s alleged defamatory statement was protected under “the defendant’s First Amendment right to Free Exercise of her religion,” the trial court grounded its decision upon the holding in Cimijotti v. Paulsen, 230 F. Supp. 39 (N.D. Iowa 1964), aff'd 340 F.2d 613 (8th Cir. 1965). In Cimijotti, a husband sued his wife and two other women for conspiracy to harm the husband’s reputation because of testimony they gave to the Catholic Church. The court dismissed the claim against the wife because of common-law spousal immunity. It dismissed the case against the two other witnesses, reasoning:

“To allow slander actions to be based solely upon statements made to the Church before its recognized officials and under its disciplines and regulations would be a violation of the First Amendment. The law withdraws from the State any exertion of restraint on free exercise of religion. The freedom of speech does not protect one against slander, yet a person must be free to say anything and everything to his Church, at least so long as it is said in a recognized and required proceeding of the religion and to a recognized official of the religion. . . . [T]he person .must not be prohibited, by fear of court action either civil or criminal against his person or property, from actually malting the communication.” (Emphasis added.) 230 F. Supp. at 41.

The Cimijotti court then held that “based upon the common law . . . and the First Amendment,” the defendants’ statements to the Catholic Church “are absolutely privileged against an action for defamation. On this basis, the plaintiff s complaint would have to be dismissed.” 230 F. Supp. at 42.

Here, Harcsar claims an absolute privilege against liability for her statements to the Archdiocesan Tribunal under the First Amendment. In Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S. Ct. 900, 84 L. Ed. 1213 (1940), the Court stated that the First Amendment has a dual purpose. First, “it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship.” Second, “it safeguards the-free exercise of the chosen form of religion.” As a result, “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.” 310 U.S. at 303-04. Thus, the freedom to act, even when the action is in accord with one’s religious convictions, is not totally free from regulation for the protection of society. In other -words, laws over one’s religious beliefs and opinions are prohibited by the First Amendment. Nevertheless, laws may reach one’s actions or practices when they are found to violate some important social order, although the actions or practices are required by one’s religion. See Prince v. Massachusetts, 321 U.S. 158, 166-68, 64 S. Ct. 438, 88 L. Ed. 645 (1944) (The Court upheld a statute making it a crime for a girl under 18 years of age to sell any newspapers, periodicals, or merchandise in public places despite the fact that a child of the Jehovah’s Witnesses’ faith believed that it was her religious duty to perform this work.); Reynolds v. United States, 98 U.S. 145, 166-67, 25 L. Ed. 244 (1878) (The Court upheld the polygamy conviction of a member of the Mormon faith despite the fact that an accepted doctrine of his church then imposed upon its male members the duty to practice polygamy.).

Here, Harcsar’s alleged defamatory statements—that Purdum had been “diagnosed as bipolar”—are not of the land normally associated with someone’s religious beliefs and opinions. Harcsar’s statements do not express an inherently religious belief or religious purpose. Thus, these statements should not enjoy an absolute privilege against liability under the Free Exercise Clause of the First Amendment. Although the trial court’s reliance on Cimijotti s absolute privilege ruling may have been misplaced, a trial court’s decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. Robbins, 285 Kan. at 472.

Harcsar, in her responsive pleadings, advances another absolute privilege argument. She maintains that an absolute privilege existed for her alleged defamatory statements on tire grounds drat her statements were made in a “quasi-judicial proceeding.” Privilege, absolute or qualified, is a complete defense against liability for libel. Prosser, Law of Torts § 114, at 776 (4th ed. 1971). The question of whether a publication is privileged is a question of law to be determined by dre court. Turner v. Halliburton Co., 240 Kan. 1, 8, 722 P.2d 1106 (1986).

Absolute privilege concerning defamatory publications has been “confined to a few situations where there is an obvious policy in favor of permitting complete freedom of expression, without inquiry as to the defendant’s motives.” Prosser, Law of Torts § 114, at 777. For example, in Kansas, an absolute privilege has been limited to those individuals “who serve in a legislative, executive or judicial capacity.” Turner, 240 Kan. at 7. See also Weil v. Lynds, 105 Kan. 440, 443, 185 P. 51 (1919) (Witnesses in judicial proceedings enjoy an absolute privilege against slander actions so long as their answers to questions are some way pertinent to the issue being tried; otherwise they enjoy a qualified privilege, depending upon whether they “acted in good faith and believed the matter to be pertinent as well as true.”). Absolute privilege is granted by constitution, legislative enactment, or caselaw to facilitate the effective performance of government. Turner, 240 Kan. at 7.

This court explained the purpose of absolute privilege in Sampson v. Rumsey, 1 Kan. App. 2d 191, 194, 563 P.2d 506 (1977):

“Absolute privilege is founded on public policy and provides immunity for those engaged in the public service and in the enactment and administration of law. It is not intended so much for the protection of those engaged in that service as it is for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for recovery of damages.”

See Redgate v. Roush, 61 Kan. 480, 59 P. 1050 (1900) (“The defamatory statement was not absolutely privileged, as words spoken or written by judges, jurors, or witnesses in the course of judicial proceedings, or as in legislative debates, but it was, at most a case of qualified privilege.”).

Returning to Harcsar’s “quasi-judicial proceeding” argument, this court notes that Black’s Law Dictionary 849 (6th ed. 1990) defines a “judicial proceeding” as follows: “Any proceeding wherein judicial action is invoked and taken .... Any proceeding to obtain such remedy as the law allows .... A proceeding in a legally constituted court.” These definitions all describe secular, non-ecclesiastical, proceedings. Because Harcsar’s “quasi-judicial proceeding” occurred in an ecclesiastical setting and because the occasions for absolute privilege are limited by court precedent, this court determines that Harcsar’s absolute privilege argument fails.

Harcsar and the Archdiocese also advance several other arguments for the dismissal of this action. This court determines that their argument under the Establishment Clause requires the dismissal of this action. The judicial resolution of this defamation action would inexorably entangle the civil courts in an attempt to interpret canon law in violation of the First Amendment of the United States Constitution.

Establishment Clause

There are three main concerns against which the Establishment Clause sought to protect: “sponsorship, financial support, and active involvement of tire sovereign in religious activity.” Walz, 397 U.S. at 668. There are three tests that a law must pass if it is challenged under the Establishment Clause: (1) the statute must have a secular legislative purpose; (2) the statute’s primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971).

In Lemon, the Court determined that excessive government entanglement with church-related schools would occur. This entanglement was found to inhere in state laws providing for payment of part of the salaries of teachers in parochial schools. The laws were held invalid even though their operation was limited to teachers of secular subjects. The Court reasoned that to ensure enforcement of the limitation, there would have to be excessive entanglement arising from the state’s power of continuing surveillance to determine if the limitation was obeyed. 403 U.S. at 614.

No Excessive Government Entanglement with Religion

An excessive entanglement in violation of the Establishment Clause can occur when states or civil courts are required to interpret and evaluate church doctrine. If civil courts can resolve the issues by “neutral principles of law” by applying rules or standards without inquiiy into religious doctrine, there is no entanglement problem. Jones v. Wolf, 443 U.S. 595, 602-04, 99 S. Ct. 3020, 61 L. Ed. 2d 775 (1979).

To determine whether the Establishment Clause prohibits die civil courts from exercising jurisdiction over this matter, this court, must consider the specific elements of Purdum’s claim. In other words, this court must determine the nature and extent of the doctrinal relevance involved in the dispute.

Purdum bases his suit on a letter that Harcsar wrote to the Archdiocese asking for an annulment of her marriage to Purdum. Paragraph 9 of Purdum’s first amended petition states that the letter “contained several false and damaging statements of fact about Plaintiff s behavior and psychological state, including but not limited to an assertion that Plaintiff was diagnosed as bipolar.’ ”

As stated earlier, Harcsar’s petition for annulment was published solely to the Archdiocesan Tribunal in an ecclesiastical context. In that respect, the petition for annulment supplied the basis for Harcsar’s initiation of annulment proceedings against Purdum under canon law. The Catholic Church does not permit divorce and remarriage. The Catholic Church will allow a later marriage when an annulment, which is also known as a “declaration of invalidity,” is granted for any previous marriage. Thus, Harcsar’s petition for annulment was used to invoke the church’s jurisdiction to determine if the defects, if any, in her marriage justified an ecclesiastical declaration of invalidity. Indeed, Purdum’s notice of Harcsar’s petition for annulment, which included the alleged defamatory statements, is grounded upon religious doctrine. Moreover, Harcsar’s petition for annulment inextricably became part of the Archdiocesan Tribunal, within its ecclesiastical procedure.

Essentially, Purdum’s contentions allege that the alleged defamatory statements made by Harcsar can be “evaluated solely by the application of neutral principles of law and do not implicate matters of religious doctrine and practice.” This court disagrees. For example, Harcsar claims an absolute privilege, which this court briefly discussed earlier, and, in the alternative, a qualified privilege to the alleged defamatory communication. In addition, Harcsar has raised, in her responsive pleadings, a defense of consent to her allegedly defamatory statements. The very nature of Harcsar’s defenses and Purdum’s defamation action will entangle the civil courts in the details of tire administration and procedures of the Archdiocese’s annulment proceedings. To illustrate, Purdum, at the trial court level, sought discovery from the Archdiocese for the following documents:

“1. Any and all correspondence and documents exchanged by you or the Archdiocese of Kansas City in Kansas (‘Archdiocese’) and Stephen Purdum in connection with his marriage case (the ‘Marriage Case’).

“2. Any and all correspondence and documents exchanged by you or the Archdiocese and Katy Purdum in connection with the Marriage Case.

“3. Any and all correspondence and documents exchanged by you or the Archdiocese and any third party or witness in connection with the Marriage Case.

“4. The file created by you or the Archdiocese in connection with the Marriage Case.”

This requested discovery alone will entangle the civil courts in the administration of the Archdiocese’s annulment proceedings. Moreover, there is no way for Purdum to prove his defamation action against Harcsar without excessive entanglement between the civil courts and the Archdiocese. For instance, Purdum conceded to the trial court that the only defamatory publication allegedly made by Harcsar was made to the Archdiocesan Tribunal:

“TPIE COURT: His claim is that he received this publication or that it was given to the church?

“[PLAINTIFF’S ATTORNEY]: Well, he received the publication, and it was published to the Archdiocese.

“TPIE COURT: Not the parishioners, but to the hierarchy?

“[PLAINTIFF’S ATTORNEY]: Right. And I believe that there may have been witnesses to the Archdiocese proceeding. But within the Archdiocese proceeding, not to the parishioners at large.

“THE COURT: Which he knows about because he received his notice as part of the church process which he at least impliedly knows exists because he signs on to the process, submits to the marriage in the church?

“[PLAINTIFF’S ATTORNEY]: It was a Catholic marriage.

“TPIE COURT: So his main complaint arises from him being notified. Otherwise he would have never known anything about the process.

“[PLAINTIFF’S ATTORNEY]: Well, that was how he received notice, but the publication at issue wouldn’t be the publication to him.”

Moreover, Purdum’s first amended petition makes no allegation that Harcsar repeated her allegedly defamatoiy statements to any other persons or in any other forum except to the Archdiocese. Thus, there is no claim that Harcsar disseminated the defamatoiy statements outside the Catholic Church.

As stated previously, Harcsar’s petition for annulment is inextricably part of the Archdiocesan Tribunal. Purdum’s suit would require discovery and depositions of employees of tire Archdiocese and would require the civil courts to interpret canon law concerning Harcsar’s consent defense. For instance, the consent to submit to the discipline or authority of the church, sect, or congregation is one of contract; therefore, it is between the person who has given his or her consent and the religious body. Rosicrucian Fellow. v. Rosicrucian Etc. Ch., 39 Cal. 2d 121, 132, 245 P.2d 481 (1952). Determining whether Harcsar’s consent defense is valid and proper would clearly involve the courts in questions of religious doctrine. Thus, adjudication of Harcsar’s consent defense would entail judicial intrusion into a matter that the Catholic Church is entitled to decide, free from government intrusion.

There is no doubt that the First Amendment offers no protection to religious worshipers who make slanderous or libelous statements outside ecclesiastical tribunals, but that is not the case here. Harc-sar asked for an annulment in a church forum as part of a church-approved, church-defined, and church-controlled process where the church would determine the validity of the church’s marriage sacrament. There is no evidence that she took any action against Purdum outside tire Archdiocesan Tribunal. Purdum’s defamation action involves an ecclesiastical subject matter, and adjudication of it would entangle the civil courts in a church matter.

The First Amendment to the United States Constitution gives to churches freedom in managing their affairs in accordance with their own internal law and procedure, free from civil courts and governmental intervention:

“The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine, and to create tribunals for tire decision of controverted questions of faith within the association, and for the ecclesiastical government of all tire individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.” Watson v. Jones, 80 U.S. (13 Wall.) 679, 728-29, 20 L. Ed. 666 (1871).

Although Watson was based on federal common law, the United States Supreme Court has expressly applied Watson to the first Amendment. Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710, 96 S. Ct. 2372, 49 L. Ed. 2d 151 (1976); see also King v. Smith, 106 Kan. 624, 89 P. 89 147 (1920).

To avoid paying damages to Purdum, Harcsar would have to prove in the civil courts that the statements she made in her petition for annulment were true. Moreover, if Harcsar relies on the defense of qualified privilege, she has the initial burden of establishing a prima facie case of qualified privilege. “A qualified privileged publication is one made on occasion which furnishes a prima facie legal excuse for making it unless additional facts are shown which alter the character of the publication.” Munsell v. Ideal Food Stores, 208 Kan. 909, 920, 494 P.2d 1063 (1972). As a result, Harc-sar would have to show that the statements she made in her petition for annulment were “made in good faith, without malice, and with reasonable or probable grounds for believing them to be true.” 208 Kan. at 920-21.

How can the civil courts—and perhaps a jury—determine if the statements Harcsar made in her petition for annulment were “made in good faith, without malice, and with reasonable or probable grounds for believing them to be true” without entangling itself in the religious sincerity and conscience of Harcsar? The resolution of these factual disputes would require the courts to inquire into religious practices. Moreover, how can the civil courts—and perhaps a jury—consider Harcsar s consent defense without entangling itself in the details of the administration and procedures of the Archdiocese’s annulment proceedings? Indeed, Harcsar’s consent deféhse would require the civil courts to interpret canon law. This is the sort of entanglement that the Establishment Clause forbids. Thus, this court determines that the Establishment Clause under the First Amendment precludes jurisdiction over the subject matter of Purdum’s defamation action. Although this court holds under a different ground than adopted by the trial court, this court determines that the trial court properly concluded that the First Amendment precluded its exercise of subject matter jurisdiction in this defamation action.

Because this court has affirmed the trial court’s dismissal of this action, it is not necessary for this court to address the Archdiocese’s motion to intervene and Church autonomy doctrine issues.

Affirmed.

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