Pastoral Confidences Preserved by Lutheran Pastor
 

Published: 06/01/2004

On the last day of 2000, Isaac Grimes, a 15-year-old sophomore at Palmer High School in Colorado Springs, killed his best friend, Tony Dutcher, also 15. Isaac slashed Tony's throat while he lay asleep in his sleeping bag near his grandparents' trailer. Jonathan Matheny, a 17-year-old friend from the same high school, watched. Later that evening Jonathan shot and killed Tony's grandfather and grandmother, Carl and Joanna Dutcher, with an assault rifle. The Dutchers' bodies were not found until three days later. Two months would pass before the police arrested Isaac and Jonathan along with 19-year-old Simon Sue, who, according to Isaac, ordered the raid on the Dutchers' residence as proof of their loyalty to him.

Isaac and his parents were longtime members of Ascension Lutheran Church, a medium-size Lutheran congregation in Colorado Springs. Isaac's parents sang in Ascension's choir and participated in its Sunday school.Isaac had been baptized in the Evangelical Lutheran Church of America (ELCA). He had participated in the church's youth activities, volunteered at Vacation Bible School, and served as an altar boy. Isaac had even brought his friend Tony to church with him on occasion. When news of Tony's grisly murder was published, Ascension's pastoral staff and congregation members consoled Isaac and his parents—never contemplating that Isaac might have been the one who drew the knife.

On March 8, 2001, law enforcement officials asked to interview Isaac. Although Isaac's mother did not know the full story herself, she urged her son to tell the investigators everything. He did. After two months and eight days and—one would suspect-—many sleepless nights, Isaac Grimes's conscience awakened. He confessed his crime. He also explained that he and Jonathan belonged to a paramilitary organization led by Simon; that there were many weapons stored at Simon's residence; and that Simon had threatened to kill Isaac, his parents, and his three siblings if Isaac did not take down his friend. Isaac was promptly arrested as were Jonathan and Simon the following day.

At the time of Isaac's confession, the Reverend Keith Hedstrom had served as senior pastor at Ascension Lutheran for more than 15 years. He had been formed by doing what pastors do. Day in and day out, year after year, Pastor Hedstrom had studied the Word, proclaimed the Good News, baptized the newly faith-filled, prepared couples for marriage, sat with the dying, and along the way learned of God's mercy. Pastor Hedstrom knew his flock. He knew Isaac as he had himself prepared Isaac for confirmation, and he knew Isaac's parents.

When Keith Hedstrom was ordained in 1971, he vowed that he would be faithful to the Holy Scriptures and the ancient Christian creeds. He promised that he would "pray for God's people," and he committed himself to "give faithful witness in the world [of] God's love." The bishop who ordained him then admonished Pastor Hedstrom to "tend the flock of God that is your charge" and instructed him to "[c]are for God's people, bear their burden, and do not betray their confidence." The Evangelical Lutheran Church of America takes pastoral confidences seriously. Its constitution requires that Lutheran pastors preserve inviolate the confidences that are part of their ministry.

In keeping with the historic discipline and practice of the Lutheran church and to be true to a sacred trust inherent in the nature of the pastoral office, no ordained minister . . . shall divulge any confidential disclosure received in the course of the care of souls . . . nor testify concerning conduct observed by the ordained minister while working in a pastoral
capacity . . .

Faithful to his promises and the work that had shaped him, Pastor Hedstrom instinctively understood his role when he learned of Isaac's crime. He repeatedly visited Isaac who was jailed in Fairplay, Colorado, 85 miles from Colorado Springs. During each visit he "followed the Lutheran rite for confession and absolution consisting of pastoral counsel, confession, absolution, prayer, consideration of a scriptural text, consecration of the bread and wine, communion, and benediction." Pastor Hedstrom also knew that Isaac's parents were devastated and promptly began seeing them for what would become more than 50 pastoral visits and counseling sessions—all subject to an expectation of confidence.

On March 12, 2002, Isaac confessed in court to one count of second-degree murder and one count of conspiracy to commit murder. During the hearing, Judge Plotz gave Isaac an opportunity to speak. Isaac apologized to Tony's parents and to his own, to the defense and prosecuting attorneys, and to the judge and investigators. Tony's mother choked out "thank you" from the back of the court, and then Isaac said, "I won't ask for forgiveness. I don't deserve it. I thank God that I was caught and that all of this was stopped."

On August 14, 2002, Simon Sue's defense attorney issued a subpoena that ordered Pastor Hedstrom to hand over all of his notes regarding the pastoral care he had given Isaac and his family and to appear at the Park County District Court to testify about all of these confidences. Pastor Hedstrom knew he could not do this. He had vowed long ago to preserve inviolate such confidences. Pastor Hedstrom reflected on the witness that Lutheran pastor Dietrich Bonhoeffer had given against the German state in World War II and determined that he could not comply with the subpoena.

Pastor Hedstrom, with the support of Bishop Alan Bjornberg and the national denomination, then asked our firm for assistance. We determined that his penitential communications with Isaac were almost certainly subject to the statutory confidential clergy communications privilege, but that it was unclear whether the statute would also protect the counseling communications between Pastor Hedstrom and Isaac's parents. Because of our daily work assisting congregations and denominations, we were aware of a large number of disparate cases that protected, from government review or oversight, a wide variety of church communications. The recent Bryce case from the Tenth Circuit held that government courts had no jurisdiction over parish dialogues or a pastor's controversial handouts to his parishioners. The 1964 Iowa case Cimijott v. Paulsen held that the government could not adjudicate defamatory statements made before a church marriage tribunal. The 1990 Griffin v. Coughlin decision from New York protected even the rights of prisoners to speak confidentially with their pastor, and the 1981 Southwestern Baptist Theological Seminary case from the Fifth Circuit held that the EEOC could not even force a seminary to disclose demographic information about its faculty and administrators. There were many other cases in which the First Amendment Doctrine of Church Autonomy protected from government intrusion church membership lists, church financial records, church personnel information, penitential communications, church statements regarding discipline of members and ministers, and more. We promptly filed a motion to quash Simon Sue's subpoena, and Judge Plotz did so.

Application. There are many instances in which government power is used to invade church communications. Parties in a divorce proceeding sometimes serve a subpoena on the pastor who counseled them hoping that his or her testimony will help one side or the other regarding a child custody or other issue. The Census Bureau, the EEOC, and other government agencies may demand sensitive church information. Prosecutors, grand juries, and private litigants seek to acquire and review minister personnel files. Others try to use the formal discovery tools to acquire information from elder boards and church tribunals.

If a church teaches that some church communications are confidential, it—like the Evangelical Lutheran Church of America—should carefully articulate the character and theological basis for such confidentiality. It should then publish those statements in its governing documents, handbooks, and, when appropriate, liturgical books. After a church or denomination has articulated that some of its communications are confidential, it should protect that confidentiality by education and persuasion of anyone using government authority to invade the confidence and, if that fails, by engaging competent counsel to invoke the many legal precedents preserving church confidences. Pastor Hedstrom and the Lutheran Church have provided a first-rate example of how to preserve inviolate the confidentiality of their pastoral care.

A partner practicing in RJ&L's Colorado Springs office, Martin Nussbaum co-chairs the firm's Religious Institutions Group. He represents churches and religious organizations across the nation in a variety of legal matters, including risk management, ministerial misconduct, corporate, tax, property, tax-exempt financing, licensing, employment, First Amendment rights, and related litigation. He can be reached at 719-386-3004 or by e-mail at mnussbaum@rothgerber.com.