The Danger of Settlements

by Tech49 182 Replies latest jw friends

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  Richard Oliver

  Federal law does provide civil liability immunity if the report is made in food faith. But federal law on this is limited to crimes that took place on federal land or federal buildings.

  If you mean would the immunity from civil liability still apply in federal court? There are two ways a civil trial would be handled in federal court. One is if there is a federal question or the federal court is a party to the case. The second is if there is a dispute in citizenship, if the plaintiff and defendant are citizens of different states, and the value of the controversy is over 75000. If it is the second option, the court will generally rule in like manner of a state court in the plantiffs state, though the court wouldn't make a ruling that would be out of line of the federal rules.
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  Fisherman

  Federal law does provide civil liability immunity if the report is made in food faith.

  What I am referring to is Berger's decision on protected communications grounded on the 1st Amendment versus state law granting immunity for good faith reporting.
  
  
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  Richard Oliver

  A federal court that is hearing a diversity case, would rule in a like manner of how a state court would rule. So if there is precedent that a state appeal's court has decided, the federal court would rule based on that precedent. Of course if a federal court has ruled that a state law is unconstitutional then that would take precedence over a state court's ruling.
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  Fisherman

  Of course if a federal court has ruled that a state law is unconstitutional then that would take precedence over a state court's ruling.

  So, are you saying that church protected communications cases have only been decided upon on a State level but not on a Federal Court level which could interpret Burger's decision even more?

  Albeit state mandatory reporting laws, are church privilege communications also governed separately and concurrently under Federal Rule 506? Do State laws mandating church privilege disclosure immunize from liability under Federal law, for example 506 or the 1st Amendment? Do state mandating reporting laws nullify Federal law granting church non disclosure privilege?

  Richard Oliver, I am saying that on a state level a state is in effect nullifying Federal law when it in essence revokes non disclosure privilege with statutory mandate reporting because it violates the confidentiality of the penitent even if the reported disclosed communication could not be used as evidence at a trial. Do you follow what I am saying?
  
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  Richard Oliver

  http://federalevidence.com/blog/2010/may/rare-case-federal-clergy-communicant--privilege

  Apparently, there is not a lot of case law on this subject since about 1980.
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  Fisherman

  Apparently, there is not a lot of case law on this subject since about 1980.

  Then, albeit state laws that mandate reporting, the church still has a Constitutional basis for claiming the privilege?

  Yes or No?
  
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  Richard Oliver

  There are a number of states that provide the privilege in cases like this. And yes since the holder is the communicant then the clergy is bound by it. If the communicant wants to lift the privilege then the clergy member has no longer any privilege to keep it quiet. Again that is why in the Conti case Simmons ask Kendrick's Ex Wife and Step Daughter if they wanted the communication to be kept private, because he knew that the privilege would still apply unless they somehow can prove that they lifted the privilege.

  And like you brought out what a ministers sees with their own eyes that is not privileged. Such as in the Fessler case, even though the father was an elder, he found out about the abuse as his role of a father not as an elder.
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  Fisherman

  And yes since the holder is the communicant then the clergy is bound by it.

  So what about the Padron case where wt is being compelled do disclose privileged documents?
  
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  Richard Oliver

  The court has issued a legally prescribed order for those documents. Watchtower is doing what it can do to protect the third party confidentiality of those documents. The appeals court ruled that the documents are allowed to be given over, with third party information redacted, but that doesn't mean that the information can be used. The court ruled that both sides can go on a fishing expedition but doesn't mean that any of the documents will see the light of day in a court room.
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  Fisherman

  The appeals court ruled that the documents are allowed to be given over, with third party information redacted,

  both sides can go on a fishing expedition

  With party names redacted, who can they fish for or what? And has wt handed over those documents?