United States District Court, D. Kansas
For United States of America, Plaintiff: Emily A. Gunston, LEAD ATTORNEY, U.S. Department of Justice - Civil Rights Division, Special Litigation Section, Washington, DC; Aaron Fleisher, U.S. Department of Justice - Civil Rights Division - PA Ave., Washington, DC; Barry R. Grissom, United States Attorney's Office, Kansas City, KS.
For Angel Dillard, Defendant: Donald A. McKinney, LEAD ATTORNEY, McKinney Law Firm, Inc., Wichita, KS.
For Mila Means, Deposition Witness, Interested Party: Erin C. Thompson, Lee Thompson, LEAD ATTORNEYS, Thompson Law Firm, LLC, Wichita, KS.
MEMORANDUM AND ORDER
J. THOMAS MARTEN, JUDGE.
The government alleges in this civil action under 18 U.S.C. § 248(a)(1) that the defendant Angel Dillard sent a threatening letter to Dr. Mila Means, a provider of abortion services. The general background of the case has been fully discussed by the court in its prior Order denying Dillard's Motion to Dismiss, in which it found that a rational recipient of the one-page letter could deem it a threat. (Dkt. 30). But the court has also denied the government's request for a preliminary injunction, finding that such an interpretation is possible but not compulsory, given actual text of the letter. (Dkt. 16).
The matter is now before the court on the defendant's appeal from certain evidentiary rulings by the Magistrate Judge. Specifically, Dillard challenges the Magistrate Judge's determination that she may not invoke the clergy-penitent privilege to shield the content of her prison ministry communications with Scott Roeder because she is not a formally ordained minister.
The court finds that the Objection should be sustained in part, because the modern federal clergy-penitent privilege is not restricted to persons with formal ordination. The policies underlying the privilege apply with equal force to lay persons who regularly conduct religious counseling sessions, and the uncontroverted facts establish that Dillard's prison ministry visits were religious in nature.
The following facts were presented to the Magistrate Judge. The underlying documents are uncontroverted, although the parties dispute the relevance and weight of the facts asserted by their opponent.
The facts establish that the chaplaincy at the Sedgwick County jail is operated by Christian Ministries to Offenders, Inc. (CMO). CMO is a ministry which has been recognized by the government as a § 501(c)(3) non-profit organization that has served inmates in the Sedgwick County Jail for more than thirty years. In Wichita, CMO operates under the authority of the Sedgwick County Sheriff's Office and the detention facility, and is the approved ministry for all religious and spiritual programming at the jail.
The mission of CMO is to minister to inmates as they deal with emotional, physical, and spiritual needs. The vision of CMO includes visiting with each person being detained and sharing with them the love of God. According to CMO, its goal is " to touch the spiritual lives of as many inmates as possible with the 'born-again' message of Jesus Christ." CMO currently seeks to achieve that goal by supplying prisoners with chapel services, group bible studies, one-on-one biblical counseling, and an array of Christian study materials.
Angel Dillard and her husband, Dr. Robert Dillard, acted as ministerial agents of CMO, having been granted ministerial privileges at the Sedgwick County Jail. In conjunction with those ministerial privileges, each of the Dillards was issued a badge with photo ID which permitted them to conduct ministry work within the jail under the auspices of CMO and the Sedgwick County Sheriff's Office.
To receive their ministerial privileges at the jail, the Dillards, like other applicants, were required to complete a seven-page application form. CMO expects all applicants (including the Dillards) to maintain the confidentiality of inmates and inmate communications conducted during jail ministry, and the applicants (including the Dillards) were required by the Sedgwick County Sheriff's Office to sign an agreement, within the application form, to honor
the confidentiality of inmates who came into contact with jail chaplains or ministry workers. The Dillards, and all other applicants, were also required to (a) provide references, to include an ordained religious leader from a faith-based organization; (b) demonstrate prior ministry or counseling experience; (c) complete an interview process; (d) demonstrate and affirm their adherence to core Christian beliefs; and (e) successfully pass a background check. Applicants were also required to comply with all rules and regulations of the jail.
All applicants, including Angel and Rob Dillard, were required to complete a " Ministerial Privilege Affidavit." The ministers listed as references by the applicants were interviewed by CMO. When CMO reviewed the applications of potential ministry workers such as the Dillards, CMO sought to determine the home church of the applicant and obtain a letter of validation from that church.
The chaplain's office, through CMO, conducts services twice a day, five days a week, with an additional chapel service on Sundays. CMO also provides one-on-one counseling with inmates, often using Angel Dillard to conduct that ministry. During the application process, and later while on the job, Angel Dillard demonstrated to her CMO supervisor the previous experience which CMO looked for in the areas of both general ministry and the " one-on-one" counseling format used at the jail. Angel Dillard and Dr. Dillard were regarded as having done an outstanding job in the jail ministry, and their presence is missed by CMO.
In order to qualify for ministerial privileges, applicants such as the Dillards were required to demonstrate that they subscribed to basic tenets of the Christian faith and complied with the CMO " Statement of Faith." Dr. and Mrs. Dillard demonstrated commitment to these principles during the application process and interviews, and maintained commitment to these principles while serving as ministers working out of the chaplain's office and serving the jail population.
In addition, ministry applicants were provided training which emphasized the fact that inmates and ministers expected counseling sessions to be confidential, that such confidentiality is essential to maintain the effectiveness of the ministry, and that jail ministry workers are expected to strictly honor inmate confidentiality.
CMO operates in partnership with, and under the authority of, the Sedgwick County Sheriff's Office. Not only does CMO observe and honor the confidentiality of the inmates, but the sheriff's office expects and requires jail ministers to maintain such communications as confidential. The inmates also expect counseling communications with spiritual advisors to be confidential.
According to the evidence from CMO, the guarantee of confidentiality is absolutely necessary for inmate evangelistic efforts and ministry work to be successful. Such ministry often focuses on repentance, forgiveness, and grace. These goals require that inmates be able to discuss their past behavior freely with the ministers, without fear of legal consequences, embarrassment, public ridicule or recrimination. Thus, CMO trains all ministry workers in the chaplain's office that communications with inmates must be kept confidential. Accordingly, both the inmates and the ministers have an expectation of confidentiality. That is, the content of meetings between inmates and ministers is to be held strictly confidential. If inmates were to become fearful that their communications to ministers might be divulged to law enforcement authorities, the ministry would be rendered ineffective and little meaningful inmate contact would occur.
Without the guarantee of confidentiality, the ministry of spiritual advisors and religious counselors would be rendered largely useless. Evangelistic and rehabilitation efforts would be far less successful.
Before Angel Dillard met Scott Roeder for the first time, at the Sedgwick County Jail, she and her husband, Dr. Robert Dillard, already had an established ministry.
In 2001, Angel Dillard's severely handicapped son, Deacon, died at the age of twelve. She had devoted her time to providing care to him twenty-four hours a day, and after his death she was able to spend more time on Christian ministry to others. That year, she and her husband began serving in the worship ministry at Immanuel Baptist Church, of the Southern Baptist denomination. In 2004, she assisted her husband in an officially recognized position of youth ministry at Immanuel Baptist. In August 2006 or thereabouts, The Dillards began serving as youth pastors and worship ministers at Summit Church, also affiliated with the Southern Baptist denomination. In her ministry at both churches, Angel Dillard provided spiritual counseling, advice, and instruction to youth and adults.
Sometime in 2007, Angel and Rob Dillard established their own ministry, Mustard Seed Ministries, a ministry of broad scope in which they ministered in a variety of capacities, whatever they felt God calling them do. This included opening their home as a shelter to abused women and their children, as well as to traveling missionaries and others, including a pastor who could not find housing. They also provided a wide range of Christian counseling, including counseling for teenagers, pre- and post-abortion counseling, and substantial counseling and spiritual mentoring to abused women and victims of domestic violence. The Dillards also filled pulpits at various churches and home fellowships when the regular pastors were absent. The Dillards frequently provided music and worship ministry at churches. Over the years, they received formal training at ministry seminars and training sessions for ministries, including multi-denominational seminars and week-long ministry camps.
Before becoming involved in ministry counseling to inmates at the Sedgwick County jail, Angel Dillard obtained a Bachelor's Degree in psychology at Wichita State University. In the course of earning her degree, she obtained substantial experience, including counseling victims of domestic abuse and counseling related to abortion. These counseling efforts continued after she obtained her degree. Her internship for her degree was conducted at a detention facility, where she provided trained counseling, including spiritual counseling, to detainees. Dillard completed approximately eight to ten hours in the Religious Studies Department while earning her psychology degree.
Angel Dillard first learned about Scott Roeder after he was jailed. Dillard felt spiritually called to minister to him because it appeared no one else would help him. She wrote him offering to minister to him at the jail with spiritual advice, counsel, and Bible study if he desired. In reply, he invited her to minister to him at the jail.
Dillard signed in as a ministry visitor before her first meeting with Mr. Roeder, and she maintained that role thereafter. Eventually, she became a friend to Roeder, as she did with many inmates to whom she ministered. Nevertheless, the first and foremost purpose of her every visit, letter, or phone call with Roeder was to minister as a Christian counselor and spiritual advisor, typically including prayer
and Bible study. Roeder always seemed eager to talk with her about the Bible or to pray. It was her understanding that he regarded their discussions as confidential ministerial visits, as did she. She understood that confidentiality was especially important to inmates who had not yet been to trial, such as Roeder at that time. Dillard obtained official ministerial privileges at the Sedgwick County jail through CMO. She subsequently ministered to over a hundred inmates in chapel meetings and during the one-on-one counseling. Throughout this ministry, she applied basic principles of Christian doctrine and complied with the CMO " Statement of Faith."
As a minister to inmates, Angel Dillard was trained to follow all rules of the facility and not to engage in unlawful conduct. As a Christian counselor, her goal was to follow the principles of Christ. According to Dillard, at no time in her jail ministry did she engage in or plan unlawful criminal acts, nor did she communicate with inmates to that end.
In its Responses to Dillard's Motion for Protective Order and her Objection to the Order of the Magistrate Judge, the government argues that the facts demonstrate that Dillard did not provide ministerial services to Roeder. First, it notes that in a print-out of Dillard's prison visits to Roeder and other prisoners, which includes a column apparently referencing the " Type" of visit, the visits to Roeder are listed as " F" for " friend," while her subsequent visits to other prisoners are identified as " M," for " minister." It is unclear who supplied this description to the visits, but it is also notable that all of the approximately 50 visits to other prisoners (including the " M" for minister visits) happened after Dillard stopped visiting Roeder. The most natural inference is simply that, as Dillard continued her CMO ministry, she learned to fill out the prison forms differently, rather than, as the government would have it and in the face of the overwhelming weight of the other evidence, her visits to Roeder were secular rather than ministerial in nature.
The next argument advanced by the government is similar, observing that in some of the actual logs recording individual visits by Dillard, the term " friend" appears in handwriting. The logs, however, merely permit a visitor to self-identify a " Relationship to Inmate," without requiring or suggesting that the visitor select from mutually-exclusive categories of " minister" or " friend." To the contrary, in the forms submitted by the government, every other visitor supplies a specific family relationship, such as " Mom," or " Sister." The government's negative inference might have some weight if Dillard had described herself as a " friend," while other visitors on the same page had listed themselves as " minister," or otherwise indicated a ...