Court Hears ‘Church Malpractice’ Case

An attorney for the parents of a man who committed suicide while receiving counseling at a Sun Valley church argued Monday that the First Amendment should not protect pastors whose advice leads to a person’s death.

“Where life is at stake, even the church can’t escape liability,” attorney Edward Barker said at a hearing before the 2nd District Court of Appeal in Los Angeles.

Barker, representing Walter and Maria Nally of Tujunga in the landmark “clergy malpractice” lawsuit against Grace Community Church of Sun Valley, urged the appeal court to reinstate the 1980 suit and order that a new trial be held. The suit is believed to be the first such malpractice action to be brought against a church.

The case was dismissed by a Glendale Superior Court judge in mid-trial in May, 1985, on the ground that any attempt by the court to regulate pastoral counseling would violate the First Amendment’s separation of church and state.

Son Killed Self After Counseling

The Nallys’ eldest son, Kenneth, 24, killed himself with a shotgun in March, 1979, after several years of counseling at the fundamentalist church. In their lawsuit, the couple maintained that clergy at the church were negligent in that they knew that their son had attempted suicide several times and was depressed enough to try it again, but failed to refer him to professional counselors and to inform the family.

Church counselors, untrained in psychology, aggravated Kenneth Nally’s problem by telling him that his emotional problems resulted from his sins, the Nallys claimed.

In urging the appeals panel to uphold the lower court’s dismissal of the case, church attorney Samuel Ericcson said protection under the First Amendment is absolute for persons providing counseling under the auspices of the church.

Ericcson said the 4,000-member Christian Legal Society, a nationwide organization of which he is a member, is watching the outcome of the case carefully.

“There has been no case anywhere that has caused so much concern,” he said. To hold the church negligent in the case would be to drive a wedge between “those who stand ready to help and those who need help the most.” Counseling leading to suicide “doesn’t give the state the right to cross over to religious territory,” he said.

Ericsson also said an appeals ruling in favor of the Nallys would discourage unlicensed counselors, telephone hot lines and other clerics from helping the emotionally troubled.

Monday’s hearing was the second before the three-judge appeals panel. A decision was expected in 90 days after the first hearing on Feb. 5, but the court called the two attorneys back a second time, which Barker said is unusual.

“It means they’re taking this very seriously,” he said. “They want to write a good opinion.”

The ramifications of the court’s decision, expected in another 90 days, are “far-reaching,” Ericcson said. “We’re creating new law here.”

First Amendment

During the hearing, the justices questioned Ericcson about the application of First Amendment protections in various situations.

Justice Earl Johnson asked if First Amendment protection would have applied in the 1978 Jonestown massacre had it occurred in the United States instead of Guyana. In that incident, 911 people killed themselves at the behest of their leader, the Rev. Jim Jones.

Ericcson said the amendment would not have applied, because the people were ordered to commit suicide.

“Jim Jones obviously did not have the best interests of the people at heart,” he said. “You can’t hide behind the First Amendment if there’s malice.”

However, Ericcson said, if a religious belief is sincerely held, even if that belief is repugnant to some people, the church is protected.

Barker said after the hearing that Johnson’s reference to the Jonestown incident was appropriate because it illustrates that a decision about what is protected by constitutional guarantees “can’t be made in advance.”

‘Inextricably Interwined’

At the February hearing, Ericcson said pastoral counseling practices are “inextricably intertwined” with the church’s religious doctrine and, therefore, are protected from governmental interference.

But Barker argued that the pastors had a duty to investigate Nally’s suicidal tendencies, warn his family and refer him to mental-health professionals. None of these three actions violate church doctrine, he said.

“The First Amendment is not the question here,” Barker said.

During the 1985 trial, church pastors testified that they told the severely depressed Nally that his emotional problems probably resulted from sin, and advised him to read the Bible and lead a godly life.

Grace Community Church claims to have the largest Protestant congregation in Los Angeles County. The church’s senior pastor, the Rev. John F. MacArthur, and 34 other pastors preside over a series of Sunday services that generally attract 10,000 worshipers, church officials said.