Suit on Cleric Malpractice Is Dismissed : Church-State Issue Cited in Decision by Glendale Judge

The nation’s first “clergy malpractice” lawsuit was dismissed in mid-trial Thursday by a judge who ruled that any judicial effort to set standards for pastoral counseling would violate the First Amendment’s separation of church and state.

“There is no compelling state interest to climb the wall of the separation of church and state and plunge into the pit on the other side, which certainly has no bottom,” Glendale Superior Court Judge Joseph R. Kalin said.

In a case that was closely watched by the religious community, Walter and Maria Nally of Tujunga sued Grace Community Church of the Valley for $1 million over the 1979 suicide of their 24-year-old son, Kenneth.

The Nallys alleged that four ministers at the fundamentalist church had provided incompetent counseling to their son and had burdened him with guilt by attributing his emotional problems to sin. They also said that when the pastors realized that their son was suicidal, the church should have insisted that the young man get psychiatric help.

But Kalin said in his ruling that the California Business and Professional Code, which establishes standards and licensing procedures for physicians, psychiatrists, psychologists and other professionals, specifically excludes the regulation of clergymen.

For the court to interfere and develop such standards on its own, Kalin said, would result in “excessive entanglement of the state” in religious beliefs and teachings.

‘That’s the Price’

Certain religious beliefs may be “totally repugnant” to some, but “that’s the price that is paid for religious freedom,” Kalin said.

Even if it could be argued that the church had a duty to inform the parents and refer Kenneth Nally to other counselors, Kalin said, the plaintiffs had failed to establish that ministers breached that duty or that the young man’s death resulted from church negligence.

Walter Nally said he was “shocked” by the ruling and may seek a new trial.

“I’m not one to give up easily, and neither is my family,” he said. “I’m not a lawyer, but as a human being, I feel we are all answerable to each other. I find it difficult to rationalize that there would be a group that is not answerable to man.”

The Rev. John MacArthur, senior pastor of the Sun Valley church, said he was not surprised by the dismissal, which came in the fourth week of the trial, after the Nallys had rested their case and the church was about to present its witnesses.

“I just feel that the truth was manifested,” MacArthur said.

MacArthur added, however, that the case had been “a trying experience. You spend a long time trying to establish yourself as a servant of the Lord in the community and you’re thrown up as a wrongdoer. I feel a great sense of relief that the system works as it does.”

The Nally family’s attorney, Edward Barker, alleged that Grace pastors misrepresented to the community that they were adequately trained to deal with problems as severe as depression, suicidal inclinations and schizophrenia by consulting the Bible. The clergymen “got in over their heads” with Kenneth Nally, Barker asserted.

Because the “born-again” church believes that a person who commits suicide can go to heaven if he has accepted Christ as his savior, pastors had a duty to be particularly careful with Kenneth Nally, who may have interpreted the guarantee of salvation as a “green light” to kill himself, Barker argued.

MacArthur, who was called as a witness by the plaintiffs, said ministers did “as much for Ken as (for) anyone at the church” in the 16 years he has headed the congregation.

The church maintained that Kenneth Nally was seen by no less than eight physicians and mental health professionals in the last two months of his life. Church pastors personally referred him to two physicians and a professor of psychology, testimony showed.

In addition, the church said several doctors recommended to the Nallys that they place their son in a mental hospital, but that the advice was not followed. The Nallys countered, however, that had they known what the pastors knew of their son’s history of depression, they would have had him committed.

Grants Defense Motion

Kalin dismissed the case by granting a motion filed by the defense Wednesday. In arguing for the motion, church lawyers said the plaintiffs had failed to demonstrate that ministers had any legally binding duty that they could be charged with neglecting.

Several jurors said they were surprised by the judge’s action. In interviews after the dismissal, some jurors said they favored the church’s position, but others said they were leaning toward the Nallys and were disappointed that they did not get a chance to decide the case.

“I would have favored the plaintiffs,” said juror Angela Wentrup. “I feel that the church put things in his mind. Everything was the devil.

“I would have gone with the Nallys because their son is not here anymore and he could have been helped.”

Changes Foreseen

Church attorney Samuel Ericsson said that although the church won the case, “pastoral counseling will never be the same” because ministers now know that “they can be sued.” Ericsson, a lawyer with the Christian Legal Society, a national group specializing in church-state issues, served as co-counsel for the church with David Cooksey, who specializes in personal injury defense cases.

“Good and bad will come from this case,” Ericsson said. “The good is that pastors will be far more careful in counseling the seriously depressed. But the bad thing is that some pastors, rather than risk perhaps being sued, will say, ‘I’m not available, don’t tell me your problems.’ ”

The unusual trial included testimony about heaven, hell, sin and Scripture, leading Ericsson to label it “Scopes II,” after the 1925 “Scopes monkey trial,” in which a Tennessee biology instructor was convicted of teaching evolution.

During cross-examination of witnesses, church attorneys sought to blame Kenneth Nally’s emotional problems on his strained relationship with his father, stemming in part from his father’s extramarital affair, which the elder Nally acknowledged on the witness stand.

The church also asserted that the son felt guilty over his struggle to suppress his sexual desires for his girlfriend and live the life of a “godly man.”

The Nallys filed their suit in 1980, but it was dismissed in 1981 by Burbank Superior Court Judge Thomas C. Murphy, who ruled that there were no triable issues of fact to be decided.

Ordered to Trial

A state Court of Appeal overturned the ruling in June, 1984, however, and ordered the matter to trial. The California Supreme Court in August, 1984, refused to review the case, opening the way for the unprecedented trial, which began with jury selection April 22 and moved to opening statements April 24.

Barker said he is willing to argue the appeal if the Nally family decides to go forward. He added, however, that he is concerned about how the family would be affected emotionally by another three-year legal battle.

Asked if he intends to drop the issue, Walter Nally responded: “You got any children? For those who do, it’s not easy to walk away.”

Some experts say that pastors will become more cautious in offering counseling. See page 24.