The New Jersey Supreme Court heard oral arguments Tuesday in a case brought by a former teacher at an Orthodox Jewish school who argued that his defamation claim should not have been dismissed because the ministerial exception applies only to employment discrimination claims.
The state high court granted certification in Hyman v. Rosenberg Yeshiva of North Jersey, on the question of whether the ministerial exception bars any tort claims raised by a former ministerial employee against a religious institution if those claims are related to the religious institution’s employment decision.
The plaintiff, Schlomo Hyman, was a rebbe and a Judaic studies teacher at Rosembaum Yeshiva of North Jersey (RYNJ) since 1988. In February 2019, RYNJ learned of allegations of inappropriate interactions between Hyman and former female students. Hyman was placed on administrative leave, the Yeshiva Board of Directors began an investigation into the allegations. The board hired the firm, Arnold & Porter Kaye Scholer, to conduct an inquiry, according to the Appellate Division opinion.
Arnold & Porter presented its findings in May 2019 to the board and the head of RYNJ, Rabbi Daniel Price. The findings included that former fifth and sixth grade students reported that Hyman intentionally touched them by doing things like massaging their shoulders and creating classroom games that caused him to touch them, according to the opinion. After receiving the findings and consulting halacha, or law according to Jewish practice, RYNJ terminated Hyman.
After Hyman was fired, Price emailed a letter to the parents of RYNJ which became part of the lawsuit that Hyman ultimately filed in Bergen County Superior Court in November 2019. Hyman claimed RYNJ conducted a sham investigation into baseless allegations, that he was wrongfully terminated, and that the letter was maliciously emailed to the community which falsely branded him as a pedophile, according to the opinion.
The Bergen County Superior Court granted the defendants motion for summary judgment based on the ministerial and ecclesiastic abstentions doctrines. Before the Appellate Division, Hyman argued that the trial court erred in dismissing his defamation claim because the ministerial exception applies only to employment discrimination claims and that further discovery was needed to determine whether the motivation behind the letter was ecclesiastic in nature, according to the opinion.
Counsel for Hyman, Richard I. Scharlat, a partner with Fox Rothschild argued that the state high court’s 2002 decision in McKelvey v. Pierce sets the standard for the ministerial exception.
“I urge the court, there are a myriad of cases cited here, to please follow the verbs,” Scharlat said. “All the verbs talk about selection, appointment, the right to hire and fire. The verbs really do not extend to a defamatory statement post employment.”
Scharlat argued that McKelvey struck a balance by saying that one must go through an analysis, after full discovery and after all the facts are in and see if one can prove a case based on secular neutral principles. He also argued that the Appellate Division did not get into the ecclesiastical abstention issue and, instead, dismissed the case on the ministerial exception and created their own standard.
“McKelvey says look at the elements of the claim, each element, look at the remedies sought, but does it also say you are entitled to discovery in all cases?” Chief Justice Stuart Rabner asked.
Scharlat said, “Functionally, yes.”
Counsel to RYNJ and other individual defendants, Akiva Shapiro of Gibson, Dunn & Crutcher, cited the U.S. Supreme Court’s 2012 opinion in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC for its application of the ministerial exception to employment discrimination claims. He argued that although the high court has not yet applied the ministerial exception outside the context of employment discrimination claims, the constitutional logic of the doctrine leads inexorably to the conclusion that the exception applies to bar any tort claim that is part and parcel of a ministerial employment decision.
“It would make no sense for adoption of constitutional magnitude to be so easily evaded simply by labeling the exact same conduct as a tort rather than a statutory employment discrimination claim,” Shapiro said. “Indeed it would render the ministerial exception meaningless.”
Justice Lee A. Solomon said the issue in this case is that the letter sent to the community, is, on its face, accusing Hyman of being a pedophile.
“Isn’t that a claim, in defamation, unrelated to whether or not he was properly fired or terminated?” Solomon asked. “That is not the issue we have here. The decision to get rid of him, because of these violations, that has been made. That is not why we are here.”
Solomon said this case is a question on whether the letter was defamatory, and if so, whether or not if Hyman’s claim is precluded by the ministerial exception.
“There is no such thing as defamation by implication under New Jersey law,” Shapiro said.
Peter G. Verniero, a former justice of the the New Jersey Supreme Court and chair of the Sills Cummis & Gross corporate investigations and integrity and appellate practice groups, appeared amicus curaie for the New Jersey Catholic conference in support of RYNJ.
Laura Wolk Slavis of Beckett also appeared amicus before the court, on behalf of Serbian Orthodox, Russian Orthodox, Romanian Orthodox, and Antiochian Orthodox church also supporting RYNJ’s position.
Deputy Attorney General Viviana Hanley also appeared amicus, arguing that the proper questions before the court of whether the ministerial exception bars this claim but also stated that the attorney general takes no position on the issue.
“The Appellate Division panel … never once cited McKelvey and applied a wholly different test, barring any tort claim brought by a minister that is related to an employment decision,” Hanley said. “Because that erroneous holding implicates ministerial employees rights against harassment under the Law Against Discrimination, the Attorney General is here as amicus curiae for the limited purpose of urging this court to reject the Appellate Division’s novel test and instead hue to McKelvey‘s sound and longstanding framework.”
