United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-1676
___________
Shane Perry, *
*
Plaintiff-Appellee, *
*
v. *
*
Robert Johnston, Rev., *
*
Defendant, *
*
Catholic Archdiocese of St. Louis, *
*
Defendant-Appellant. *
___________
Appeals from the United States
No. 10-1677 District Court for the Eastern
___________ District of Missouri.
William Goebel, *
*
Plaintiff-Appellee, *
*
v. *
*
Robert Johnston, Rev., *
*
Defendant, *
*
Catholic Archdiocese of St. Louis, *
*
Defendant-Appellant. *
___________
No. 10-1678
___________
Matthew McCormick, *
*
Plaintiff-Appellee, *
*
v. *
*
Robert Johnston, Rev., *
*
Defendant, *
*
Catholic Archdiocese of St. Louis, *
*
Defendant-Appellant. *
___________
No. 10-1679
___________
Angela Ohl-Marsters, *
*
Plaintiff-Appellee, *
*
v. *
*
Robert Johnston, Rev., *
*
Defendant, *
-2-
*
Catholic Archdiocese of St. Louis, *
*
Defendant-Appellant. *
___________
Submitted: March 17, 2011
Filed: June 10, 2011
___________
Before RILEY, Chief Judge, LOKEN and COLLOTON, Circuit Judges.
___________
RILEY, Chief Judge.
Shane Perry, William Goebel, Matthew McCormick, and Angela Ohl-Marsters
(collectively, appellees) sued the Catholic Archdiocese of St. Louis (appellant).
Appellees allege one of appellant’s priests, Rev. Robert Johnston, sexually abused
them when they were children. As relevant here, two counts in each of appellees’
governing complaints assert Missouri common law claims against appellant for
negligent hiring, and for negligent retention and supervision (collectively, the
negligence claims).
Appellant moved to dismiss the negligence claims under Fed. R. Civ.
P. 12(b)(6). Appellant relied principally on Gibson v. Brewer, 952 S.W.2d 239, 246-
48 (Mo. 1997), in which the Supreme Court of Missouri affirmed the dismissal of
some materially indistinguishable claims (the Gibson negligence claims). Pointing
to the district court’s diversity jurisdiction and invoking the Erie doctrine, appellant
argued the district court was bound to apply Gibson and dismiss the negligence
claims. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938) (holding a federal court
sitting in diversity is bound by the decisions of the state’s highest court).
-3-
The district court largely denied the motion, reasoning Gibson presented a
federal question and a federal court is not bound to follow Gibson under Erie.
Specifically, the district court, citing Aftanase v. Econ. Baler Co., 343 F.2d 187, 192-
93 (8th Cir. 1965), construed Gibson to hold the First Amendment barred the Gibson
negligence claims to forestall excessive entanglement between church and state
but—concluding Gibson wrongly interpreted the First Amendment—the district court
“perform[ed] its own First Amendment analysis” and declined to adopt the Supreme
Court of Missouri’s reasoning.
Appellant moved for interlocutory review, which we granted. See 28 U.S.C.
§ 1292(b). We then consolidated the four cases before us for purposes of briefing and
argument.
I. DISCUSSION
On appeal, the parties continue to disagree as to the nature of the analysis in
Gibson. Appellant insists Gibson “represents the substantive common law of
Missouri binding on the district court under the Erie doctrine.” Quoting one
commentator, appellant asserts Gibson advances the principle that “each state has the
option of creating or failing to create the cause of action in which the federal question
has become absorbed.” See Ronald J. Greene, Hybrid State Law in the Federal
Courts, 83 Harv. L. Rev. 289, 293 (1969). Following the district court, appellees
maintain Gibson answered a federal question in the affirmative, namely, whether the
First Amendment prohibited Missouri state courts from entertaining the Gibson
negligence claims. See, e.g., Gibson, 952 S.W.2d at 246-47 (reasoning “[q]uestions
of hiring, ordaining, and retaining clergy . . . necessarily involve interpretation of
religious doctrine, policy, and administration” and thus foster “excessive entanglement
between church and state” with “the effect of inhibiting religion, in violation of the
First Amendment”).
-4-
Determining whether a state court decision rested on federal or state law
grounds is sometimes a difficult question. Cf. Michigan v. Long, 463 U.S. 1032,
1038-39 & n.4 (1983) (discussing the difficulties in analyzing whether a state court
decision rested on adequate and independent state grounds). We need not settle the
parties’ disagreement in these consolidated appeals, because reversal is required under
either construction of Gibson.
If appellant is correct and Gibson merely defined the contours of Missouri
negligence law to exclude claims for the unreasonable hiring, retention and
supervision of clergy, then Erie controls, Gibson governs, and appellees lose. “Erie
mandates that a federal court sitting in diversity apply the substantive law of the forum
State, absent a federal statutory or constitutional directive to the contrary.” Salve
Regina Coll. v. Russell, 499 U.S. 225, 226 (1991) (citing Erie, 304 U.S. at 78 and 28
U.S.C. § 1652). In that event, the district court was not authorized to second-guess
a substantive decision of the Supreme Court of Missouri. See Blankenship v. USA
Truck, Inc., 601 F.3d 852, 856 (8th Cir. 2010).
If appellees are correct and Gibson entertained a federal question, namely,
whether the First Amendment barred causes of action materially indistinguishable
from the negligence claims, there is no Erie problem in the first instance. But an
impassable hurdle nonetheless blocks appellees’ recovery on the negligence claims:
the Missouri Constitution. Erie then reappears.
In dictum, Gibson reiterated the principle “‘that the provisions of the Missouri
Constitution declaring that there shall be a separation of church and state are not only
more explicit but more restrictive’ than the First Amendment.” Gibson, 952 S.W.2d
at 246 (quoting Paster v. Tussey, 512 S.W.2d 97, 101-02 (Mo. 1974) (en banc)). Even
if the First Amendment does not bar appellees’ negligence claims, a latent Erie issue
arises, whether the Missouri Constitution bars the negligence claims. The district
court sidestepped the Missouri Constitution application, reasoning:
-5-
The Gibson decision was based solely on the First Amendment. Had the
Gibson court found that the negligence-based claims would have also
been barred under an alternative, purely state law basis, then the Court
would be obligated to abide by that decision. However, the Gibson court
explicitly noted that its decision was not based on the religious clauses
of the Missouri Constitution. And although the court indicated that []
Missouri’s religious clauses are, generally, “more restrictive” than the
First Amendment, it is not clear from either the Gibson opinion, or the
text of the religious clauses themselves, that plaintiff’s claims would be
barred by the Missouri Constitution. Therefore, the Court will perform
its own First Amendment analysis in determining whether each of
plaintiff’s claims should be dismissed.
(citations omitted).
Appellant now asserts its Missouri Constitution defense, arguing the district
court failed in its duty under Erie to predict what the Supreme Court of Missouri
would hold were its First Amendment analysis wrong. See, e.g., Blankenship, 601
F.3d at 856 (“When there is no state supreme court case directly on point, our role is
to predict how the state supreme court would rule if faced with the same issue before
us. In other words, we must make an ‘Erie-educated guess’ when the law of the forum
state is not crystal clear.” (citations and internal marks omitted)). Appellees’ briefs
do not respond to appellant’s Missouri Constitution argument.
Assuming the district court correctly held Gibson advanced a faulty First
Amendment analysis,1 the district court erred in failing to predict the impact of the
1
As the parties’ lengthy briefs demonstrate, whether the First Amendment bars
claims sounding in negligence against a religious organization for unreasonable
hiring, retention, or supervision is a complicated issue over which courts around the
nation are divided. See, e.g., Doe v. Roman Catholic Archdiocese of St. Louis, 311
S.W.3d 818, 823-24 & n.7 (Mo. Ct. App. 2010) (collecting cases and concluding
“numerous federal courts and out-of-state courts diverge on the issue of whether the
religion clauses in the First Amendment bar plaintiffs from asserting certain
-6-
Missouri Constitution upon the negligence claims. Because the Supreme Court of
Missouri in Gibson (1) indicated the First Amendment was a complete defense to the
negligence claims, and (2) reiterated the religious freedom provisions of the Missouri
Constitution are broader than those of the First Amendment, it seems highly likely the
Supreme Court of Missouri would bar the negligence claims under the Missouri
Constitution, if its First Amendment analysis were later abrogated by the Supreme
Court of the United States.
II. CONCLUSION
We reverse and remand for dismissal of the negligence claims, as well as for
further proceedings consistent with this opinion.
______________________________
negligence claims against religious institutions” (footnotes omitted)). We need not
and do not reach that issue today. See, e.g., Lyng v. Nw. Indian Cemetery Protective
Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding principle of
judicial restraint requires that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.”).
-7-