Court Will Decide Validity of ‘Clergy Malpractice’ Case

SAN FRANCISCO — Entering a novel dispute over “clergy malpractice,” the California Supreme Court said Thursday that it will decide whether church counselors can be sued for negligence in the suicide of a 24-year-old Tujunga man who had sought their help.

The justices unanimously agreed to hear a challenge to a milestone ruling by a state appeal court allowing Walter and Maria Nally to proceed with a $1-million suit against the Grace Community Church of Sun Valley and members of its pastoral staff over the death of their son Kenneth in 1979.

The appellate decision had received strong criticism from religious leaders concerned over its potential intrusion on free speech and the constitutional separation of church and state.

The case is expected to be set for argument and then decided by the court later this year.

The attorney for the church, David R. Cooksey of Tustin, said he was “very pleased” with the justices’ action Thursday.

“Our contention is that the appeal court was trying to prescribe the content of religious counseling, in violation of the First Amendment,” he said. “It was telling ministers, rabbis and pastors what they had to (recognize) people with emotional problems. We think that kind of governmental intrusion on the ecclesiastical sphere is unconstitutional.”

Edward Barker of Los Angeles, the lawyer for the Nallys, expressed disappointment that the justices did not allow the appeal court decision to remain in effect. “Apparently,” he said, “there may be some critical First Amendment issues they want to consider.”

The case, apparently the first of its kind in the nation, involves a well-established fundamentalist church that routinely draws as many as 10,000 people to its Sunday religious services.

Improper Counseling Alleged

The Nallys brought suit in 1980, alleging that their son, a college graduate suffering from a worsening mental illness, had been improperly counseled by four of about 30 pastoral counselors serving the church at the time. Kenneth Nally had been attending the church since 1974.

The parents claimed that the counselors saddled their son with guilt by suggesting that his emotional problems were attributable to sin and then failed to insist that he acquire psychiatric help when they realized he might commit suicide.

The church contested the Nallys’ right to bring the suit and claimed also that their son in fact had been seen by five physicians and at least one psychiatrist before he took his own life with a shotgun in 1979.

Attorneys for the church won a ruling from Los Angeles Superior Court Judge Joseph R. Kalin saying the Nallys had failed to establish a case. But last September, a state Court of Appeal in Los Angeles reinstated the suit in a 2-1 decision.

The appeal court majority, in an opinion by Justice Earl Johnson, rejected the notion that its ruling would substantially affect ordinary ministerial or counseling duties of church pastors. But church counselors can be sued for “negligent failure to prevent suicide” when they agree to advise suicidal individuals, the court said.

Counselors’ Referral Duty

State law imposes a duty on any counselor to refer suicidal people to professional therapists who can prescribe medication or seek involuntary hospitalization, if necessary, to avert a suicide, the court said.

“The First Amendment does not immunize the church’s counselors from liability for failing to meet this standard of care,” Johnson wrote in an opinion joined by Appellate Justice Leon Thompson.

In dissent, Los Angeles Superior Court Judge John L. Cole, sitting temporarily by special assignment, said the Legislature was far better equipped than the courts to resolve such difficult and potentially far-reaching policy questions.

Beyond that, Cole said, the First Amendment clearly protected the church from liability in the case.