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The clergy-penitent privilege does not impose upon religious counsel a fiduciary duty subjecting them to civil liability for disclosing confidential communications, New York’s Court of Appeals held Tuesday. In a unanimous affirmance of a 3-2 Appellate Division, 2nd Department, decision, the court upheld dismissal of an action in which a woman sued two rabbis for disclosing, in the confines of a matrimonial action, that she had revealed to them her deviation from some Orthodox Jewish requirements. The court drew a distinction between confidential disclosures to secular professionals, such as lawyers and doctors, and confidences shared with a religious advisor. It also expressed concern that litigation along the lines advocated by the plaintiff “has troubling constitutional implications,” and would invariably “place fact-finders in the inappropriate role of deciding whether religious law has been violated.” Lightman v. Flaum, 144, was one of three decisions Tuesday dealing with post-marital issues. The others were: � DeLuca v. DeLuca, 150, where the court overturned a first-impression 2nd Department ruling and held that funds available to retired New York City Police Department officers outside the normal pension system are marital assets and are therefore subject to equitable distribution; and � Bloomfield v. Bloomfield, 140, where the court said that a prenuptial agreement in which a woman waived her property rights is enforceable. The clergy confidence case emerges from a divorce proceeding that Chani Lightman initiated in 1996 against her husband, Dr. Hylton Ivan Lightman. In addition to a divorce, Mrs. Lightman sought temporary custody of the parties’ four children. Dr. Lightman opposed her application by submitting under seal statements from two rabbis to show that his wife was not following religious law and was therefore jeopardizing the Orthodox rearing of the children. Prior to seeking divorce, Mrs. Lightman had discussed her marriage and life with Rabbis Tzvi Flaum and David Weinberger. She allegedly confided to Flaum that she was seeing a man in a social setting and that she had stopped performing a monthly purification ritual known as a “mikva.” In addition, Mrs. Lightman allegedly disclosed to Weinberger that she had ceased her religious bathing so she would not have to engage in intimate relations with her husband. When Mrs. Lightman saw the affidavits of the rabbis, she attempted to sue them for breach of a fiduciary duty under Civil Practice Law and Rules 4505. Queens Supreme Court Justice David Goldstein refused to dismiss the case, finding that such a cause of action is recognized in the law. The 2nd Department reversed in a 3-2 opinion, where the majority found Mrs. Lightman waived her right to religious confidentiality because she brought third parties — in one instance, her mother, and in another a friend — when she consulted with the rabbis. Tuesday, the Court of Appeals held for the rabbis, but on different grounds than did the 2nd Department. Writing for the court, Judge Victoria A. Graffeo said there are significant differences between the statutory secular privilege involving professional relationships and the “evidentiary privilege” governing spiritual relationships. Her decision traces the history of the clergy-penitent privilege, a concept foreign to common law, to the Roman Catholic sacrament of penance. Since Catholics are required to disclose their sins to a priest, priests are absolutely barred by ecclesiastical law from revealing those disclosures. The state has long recognized that relationship, and in the late 1950s extended the privilege to other religions. Central to the court’s decision is the fact that unlike doctors and lawyers, clerics are not licensed by the state or subject to state-sponsored disciplinary action for professional misconduct. “[C]lerics are free to engage in religious activities without the State’s permission, they are not subject to State-dictated educational prerequisites and, significantly, no comprehensive statutory scheme regulates the clergy-congregant spiritual counseling relationship,” Graffeo wrote. RULE OF EVIDENCE The judges agreed that CPLR 4505 should be read as a “rule of evidence and not as the basis of a private cause of action.” They also agreed with the rabbis and the amici — the National Jewish Commission on Law and Public Affairs — that Mrs. Lightman’s claim raises problematic First Amendment issues. “To permit a party to introduce evidence or offer experts to dispute an interpretation or application of religious requirements would place fact-finders in the inappropriate role of deciding whether religious law has been violated,” the court said. Franklyn H. Snitow of Snitow Kanfer Holtzer & Millus in Manhattan argued for Rabbis Flaum and Weinberger. Abe H. Konstam of Mallow Konstam & Hager in Manhattan represented Mrs. Lightman. Snitow said Tuesday that the ruling “preserves the beautiful symmetry of the First Amendment” both inside and outside of the judicial forum. “The distinction the court is drawing is its prerogative, the judicial system’s prerogative, to admit or refuse to admit what the judicial system views as a privileged communication,” Snitow said. “What the court wisely refused to do, which is consistent with hundreds of years of precedent, is to pass over in the context of a civil lawsuit for damages whether the rabbis were acting correctly within the context of their religious duties.” Snitow stressed that under Tuesday’s holding there is no question that the clergy-penitent privilege still exists, but that it exists “in the form envisioned by the courts, that is the courts’ right to pass on whether something is admissible at trial.” Where the court would not go, Snitow said, is into a constitutionally treacherous orbit where judges would be in a position of regulating religious conduct. Konstam, however, said the practical impact of the decision is that if a clergy violates confidentiality, there is no remedy at law for the penitent. “[CPLR] 4505 says ‘thou shalt not tell,’ and that to me says that a clergyman is not supposed to tell, and if he does he has breached a fiduciary duty,” Konstam said. “What the New York Court of Appeals has said is basically that if a clergyman decides to divulge, there is not a thing the penitent can do … . I don’t think this decision benefits the citizenry of New York. It does benefit the clergy, which now are insulated from any civil suits if they divulge, and it really insulates a rogue clergyman, somebody who has an axe to grind.” DeLuca v. DeLuca is a matter of considerable importance to retired New York City police officers and their estranged spouses. It deals with payments to retirees from the Police Officers’ Variable Supplements Fund, which was created by the Legislature to collect the earnings of police pension funds in excess of the fund’s obligations to pensioners. The 2nd Department found that the funds do not qualify as a pension benefit or a deferred compensation, but instead amount to a legislative incentive to encourage officers to serve for 20 years, when their interest vests. Since the right to draw from the fund does not accrue incrementally, as it would with a pension fund, the officer in this case did not accrue the benefit — about $110,000 in this matter — during his marriage, the justices held. In a 7-0 opinion by Judge Carmen Beauchamp Ciparick, the court reversed. It said the central question is whether the fund benefits are intended as compensation for services performed during the marriage or as an incentive to continued employment. “We conclude that [fund] benefits are a supplement to pension fund payments and, as such, a form of compensation for past services related to the first 20 years of police employment, notwithstanding the date they mature,” Ciparick wrote. The appeal was argued by Perry S. Reich of Schapiro & Reich in Lindenhurst for Mrs. DeLuca, and Myrna Felder of Manhattan for Mr. DeLuca. PRENUPTIAL AGREEMENT Bloomfield v. Bloomfield involves Bronx attorney Marshall E. Bloomfield and his estranged wife, Barbara Friedlander Bloomfield. Two months before their 1969 wedding, Friedlander signed a prenuptial agreement waiving various property and elective rights. At the time of the marriage, Mr. Bloomfield was a practicing lawyer. Friedlander had finished one year of college. She was not represented by counsel when she signed the agreement. The 1st Department earlier this year upheld a supreme court order that found the agreement unenforceable as an impermissible waiver of support. Tuesday, the Court of Appeals reversed. The court, in an opinion by Judge George Bundy Smith, said the agreement did not constitute a waiver of support, and remitted to the supreme court for a determination as to whether it is unconscionable. Appearing were Helene Brezinsky of Kasowitz Benson Torres & Friedman in Manhattan for Mr. Bloomfield, and Donald Frank of Blank Rope Temer Greenblatt in Manhattan for Mrs. Bloomfield.

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