Argued: September 13, 2019
Submitted: September 17, 2019
FROM: District Court of the Twentieth Judicial District, In
and For the County of Sanders, Cause No. DV-16-84 Honorable
James A. Manley, Presiding Judge.
Appellants: Bradley J. Luck, Tessa A. Keller, Garlington,
Lohn & Robinson, PLLP, Missoula, Montana, Joel M. Taylor
(argued), Watchtower Bible and Tract Society of New York,
Inc., Patterson, New York.
Appellees: James P. Molloy (argued), Gallik, Bremer &
Molloy, PC, D. Neil Smith, Ross Leonoudakis, Nix Patterson,
LLP, Dallas, Texas.
Intervenor: Timothy C. Fox, Montana Attorney General, Matthew
T. Cochenour, Acting Solicitor General, Jon Bennion, Chief
Deputy Attorney General, Helena, Montana.
Watchtower Bible and Tract Society of New York, Inc.,
Christian Congregation of Jehovah's Witnesses, and
Thompson Falls Congregation of Jehovah's Witnesses
(collectively, "Jehovah's Witnesses") appeal
the Twentieth Judicial District Court's ruling that they
violated Montana's mandatory child abuse reporting
statute, § 41-3-201, MCA, and its order granting summary
judgment to Plaintiff Alexis Nunez on her negligence per se
claim. They also appeal the court's award of punitive
damages following a jury trial. We hold that Jehovah's
Witnesses are excepted from the mandatory reporting statute
under § 41-3-201(6)(c), MCA, because the undisputed
material facts in the record show that Jehovah's
Witnesses canon law, church doctrine, or established church
practice required that the reports of abuse in this case be
kept confidential. We therefore reverse the District
Court's grant of summary judgment to Alexis and remand
for entry of summary judgment in favor of Jehovah's
Witnesses. Because this issue is dispositive, we do not reach
the punitive damages award or the Jehovah's
Witnesses' other arguments.
AND PROCEDURAL BACKGROUND
Peter McGowan, Ivy McGowan-Castleberry, and Plaintiff Holly
McGowan are siblings. Their mother Joni married Maximo Reyes
in 1994. Plaintiff Alexis Nunez is Ivy's daughter. At all
times relevant to the underlying complaint, Holly, Peter,
Joni, and Maximo were members of the Thompson Falls
Congregation of Jehovah's Witnesses ("Thompson Falls
In 1998, Holly told Don Herberger, a local elder at the
Thompson Falls Congregation, that her step-father Maximo had
inappropriately touched and fondled her. Herberger directed
Holly to two other local elders, Ken Reich and Glenn Wilson,
who dismissed her accusations on the grounds that they lacked
a confession or second witness-which elders require to
substantiate a report of abuse before taking actions against
the accused-and were therefore unactionable. Without
recourse, Holly returned home, where Maximo's abuse
escalated to include numerous incidents of rape. His abuse
continued until she was old enough to leave home.
In 2004, Peter told Don Herberger that Maximo had sexually
abused him as a child. Pursuant to the
"two-witness" rule, Don contacted Holly to confirm
Peter's report. Holly wrote a letter corroborating the
allegations and detailing Maximo's sexual abuse
throughout her childhood. She concluded, "I want to
thank Jehovah's shepherds for looking after his flock and
for taking care of this situation." Don thereafter
called Defendant Watchtower Bible and Tract Society's
("Watchtower") legal department. An attorney
advised him that Montana law did not require him to report
Maximo's abuse to local authorities. Having received this
advice, Don did not contact local police to report
Instead, Don, Glenn, and Ken formed a "judicial
committee" and confronted Maximo about the allegations.
After hearing from all three, the committee believed
Peter's and Holly's accounts. In April 2004, the
committee disfellowshipped Maximo- banished him from the
congregation-and submitted to Defendant Christian
Congregation of Jehovah's Witnesses ("CCJW") a
written report called an "S-77 Form" detailing the
events leading to Maximo's expulsion. Maximo requested
the local elders to reinstate him to the congregation; a year
later, in June 2005, they granted his request.
Alexis is Peter's and Holly's niece and Maximo's
step-granddaughter. Maximo started sexually abusing Alexis in
2002, after Holly initially reported Maximo to Don Herberger.
Maximo continued to molest Alexis on a weekly basis over the
next five years. During this time, though unaware of
Maximo's abuse of Alexis, the elders received Peter's
report; contacted the Watchtower legal department; formed a
judicial committee to investigate the allegations;
disfellowshipped Maximo; and reinstated him. They also
observed Alexis accompanying Maximo to weekend services at
the Thompson Falls Congregation. The elders did not contact
local police. Alexis was five years old when Maximo's
abuse began and ten years old when it ended.
In 2016, Alexis and Holly sued Jehovah's Witnesses for
damages stemming from their failure to report Maximo to the
authorities. Among other theories, they alleged Jehovah's
Witnesses were negligent per se under Montana's mandatory
child abuse reporting statute, § 41-3-201, MCA. In
response, Jehovah's Witnesses argued that they had no
duty to report under § 41-3-201(6)(c), MCA,
which exempts clergy from the mandatory reporting statute if
canon law, church doctrine, or established church practice
requires the communication of child abuse to be kept
The District Court granted summary judgment to Alexis on her
negligence per se claim, concluding: "Defendants failed
to report as mandated by Mont. Code Ann. §
41-3-201(2)(h). Defendants are liable for the harm of Alexis
Nunez caused by Max Reyes after the 2004 report of abuse, as
a matter of law. The question left to the jury is what is the
appropriate amount of damages to award Alexis Nunez."
The plaintiffs dismissed their common law negligence claims
and proceeded to a jury trial on this single claim. The jury
found against Holly and awarded her nothing. Having been
instructed that Jehovah's Witnesses were liable as a
matter of law to Alexis, the jury awarded her $4 million in
compensatory damages and $31 million in punitive damages.
Jehovah's Witnesses appeal both the District Court's
summary judgment ruling that they are mandatory reporters and
its failure to have the jury decide causation. Finally, they
challenge the punitive damages award on statutory and
This Court reviews de novo a district court's grant or
denial of summary judgment, applying the criteria of M. R.
Civ. P. 56(c). Stipe v. First Interstate Bank -
Polson, 2008 MT 239, ¶ 10, 344 Mont. 435, 188 P.3d
1063. Summary judgment is appropriate when the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with any affidavits, demonstrate that no
genuine issue of material fact exists and that the moving
party is entitled to judgment as a matter of law. M. R. Civ.
P. 56(c). "A de novo review affords no deference to the
district court's decision and we independently review the
record, using the same criteria used by the district court to
determine whether summary judgment is appropriate."
Siebken v. Voderberg, 2012 MT 291, ¶ 20, 367
Mont. 344, 291 P.3d ...