(dissenting) *
I respectfully dissent. I would affirm and hold that the district court had jurisdiction over Odenthals lawsuit against appellants for negligent counseling.
The majority holds that this lawsuit violates the Establishment Clause of the First Amendment because its resolution would require excessive entanglement in religion. I disagree, because clergy are not protected by the First Amendment for conduct unrelated to pastoral qualifications or issues of church doctrine. See Black v. Snyder, 471 N.W.2d 715, 721 (Minn.App.1991) (holding Establishment Clause of First Amendment does not bar former pastors sexual harassment claim against church), review denied (Minn. Aug. 29, 1991).
Odenthal produced evidence supporting his contention that Rideout, engaged in conduct that constituted secular counseling. First, Rideout used a psychological test, which is a secular counseling tool. Next, the guidelines set out in the Seventh-Day Adventist Ministers Handbook envisioned only short-term pastoral counseling (four or five sessions at most) and strongly advised against counseling women alone. It is undisputed that Rideout counseled the Odenthals for some two years, including a number of individual sessions with Diane Odenthal. Odenthal also offered the depositions of several Seventh-Day Adventist officials, who opined that Ridéouts actions in counseling the Oden-thals went far beyond the conduct they expected from their ministers. Finally, Odenthal presented expert opinion from a psychologist that Rideout was providing therapy and acting as a marriage counsel- or.
The majority also indicates concern that assessing the standard of. care would involve entanglement in church doctrine. But here, the standard of care would be a neutral one, applicable to any counselor charged with negligence. See Zagaros v. Erickson, 558 N.W.2d 516, 521 (Minn.App.1997) (holding psychologist has duty. to diagnose mental disease and to apply proper treatment), review denied (Minn. Apr. 17, 1997); see also Margaret A. Burton, Comment, Nally v. Grace Community Church: Is There a Future for Clergy Malpractice Claims?, 37 Santa Clara L.Rev. 467, 509 (1997) (proposing neutral standard of care for clergy malpractice claims).
We also look to the state legislature, which has indicated that clergy who engage in secular nonpastoral counseling are subject to state regulation. See Minn.Stat. § 148B.60, subds. 3, 4 (2000) (providing that clergy who engage in professional mental health activities are subject to dis*790cipline under state office of mental health practice, while clergy engaged in pastoral counseling are not). For purposes of the office of mental health practice, the legislature has defined mental health services to include psychotherapy, although it excludes pastoral services.
Mental health services means psychotherapy and the professional assessment, treatment, or counseling of another person for a cognitive, behavioral, emotional, social, or mental condition, symptom, or dysfunction, including in-trapersonal or interpersonal dysfunctions. The term does not include pastoral services provided by members of the clergy to members of a religious congregation in the context of performing and fulfilling the salaried duties and obligations required of a member of the clergy by that religious congregation.
Id,., subd. 4. Further, the office may impose disciplinary action on such clergy who engage in wrongful conduct, including revoking or suspending the right to practice, imposing conditions on the practice, and assessing penalties. Minn.Stat. § 148B.69, subd. 1 (2000). We also note that clergy who engage in sexual contact with their counselees while providing psychotherapy are subject to an action for sexual exploitation by their victims. Minn.Stat. §§ 148A.01, subd. 5, .02 (2000). Thus, the state legislature has no difficulty in separating protected pastoral counseling from nonprotected secular counseling.
In short, where Rideout held himself out to be a secular counselor, he had a duty to use the standard of care that any such counselor must follow. If he crosses the line and breaches that standard, he should be subject to an action for negligent counseling. I would affirm.
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.