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Church asks Supreme Court to halt malpractice lawsuit

By The Associated Press
freedomforum.org staff

03.13.02

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JACKSON, Miss. — The U.S. Supreme Court has been asked to temporarily stop a malpractice lawsuit against a former clergyman accused of letting former Gov. Ray Mabus tape his wife's confession of an affair.

The Episcopal Diocese of Mississippi made the petition.

Julie Mabus confessed to an extramarital affair on the tape, and it was subsequently used in a divorce case.

If granted, the emergency stay would prevent legal action in the malpractice case from going forward until the full court considers the matter.

The appeal was filed with Supreme Court Justice Antonin Scalia.

Julie Mabus filed the suit against the Mississippi diocese, St. James Episcopal Church and the former priest, Jerry McBride, in the aftermath of her divorce.

In the suit, she accuses McBride of allowing her then-husband to secretly record a marriage counseling session she had with McBride at her Jackson home.

The diocese argues that the suit violates the church's First Amendment rights and, if allowed to go forward, would have a chilling effect on religious practices.

The church also has argued that while McBride may have had a moral duty to keep his discussion with Julie Mabus confidential, no legally enforceable duty existed.

On the opposing side of the issue, Julie Mabus' lawsuit says the priest's action had nothing to do with religious freedom and wasn't part of the Episcopal Church doctrine.

"Where there is no ecclesiastical justification for the church's actions, the First Amendment will not protect the church," Kathy Nester, one of Julie Mabus' attorneys, said in court papers.

"If it's protected by the First Amendment, I'm certain you will have a lot less people showing up for confession," Nester said.

Charlie Ross, attorney for the Episcopal Diocese of Mississippi, said March 11 he would not discuss the case.

McBride, who at the time of the incident was an ordained priest serving as rector of St. James, is no longer affiliated with the church.

The Mabuses were granted a divorce in 2000.

The petition to the Supreme Court came after Julie Mabus' attorneys began to subpoena witnesses for depositions, The Clarion-Ledger reported yesterday.

According to the newspaper, Hinds County Circuit Judge L. Breland Hilburn had refused to dismiss the lawsuit twice. The church then appealed to the nine-member state Supreme Court. The high court split 4-4 in November after Justice James Graves Jr., whose father is a minister, recused himself from the decision, the newspaper reported. The case was originally assigned to Graves when he was a Hinds County Circuit judge, but he also recused himself from hearing it then.

Update

High court won't get involved in clergy malpractice case
Meanwhile, justices refuse to consider Massachusetts town's crèche ban or to hear case involving Nashville, Tenn., adult-entertainment law.  05.14.02

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