In this contribution to the University Press of Kansas series on Landmark Law Cases and American Society, Mark Weitz (civil litigation attorney and assistant professor of history) presents the troubling story of a family's attempt to deal with the suicide of their twenty-four year old son by suing Grace Community Church of the Valley as well as the church pastors to whom he had turned for help. Ordinarily, the term "clergy malpractice" brings to mind clergy who seduce adult church members or sexually abuse children under their pastoral care. Indeed, a quick review of the law review literature using "clergy" and "malpractice" as the search keywords shows that seduction and sexual abuse are what most authors have as their topics. The NALLY case, however, concerns the extent to which pastoral counselors, who have received no professional training in psychological counseling and locate their therapeutic approaches in religious precepts, can be held to a "secular standard of care" (p. 69). At the heart of the Church's and pastors' defense in this case was their claim that the suit against them necessarily implicated the First Amendment's Free Exercise and Establishment Clauses, a claim that curiously disappears in the final ruling on the case.

As a college student, and already experiencing emotional difficulties, Ken Nally left the Roman Catholic Church in which he had been raised and joined the independent, fundamentalist Grace Community Church in 1974. Grace, with some 20,000 members, was then the "largest Protestant church in Los Angeles County" (NALLY v. GRACE CHURCH 1988: 950). A significant part of Grace's ministry-"perhaps the most important aspect of [its] services" (p. 16)-was the church's pastoral counseling program, which was directed by biblical principles, in particular the belief that unresolved sin lay at the base of psychological problems. In 1978, suffering from continuing depression, Ken Nally engaged in formal and informal counseling with three of Grace's biblical counselors. Nally's emotional state continued to deteriorate and, in February 1979, his mother took him to a psychiatrist who prescribed an antidepressant medication. The next month, Ken attempted
suicide by taking an overdose of the antidepressant and was hospitalized. Although the counselors from Grace Church were aware that this was not Nally's first suicide attempt and although he told them, during his hospitalization, that he was determined to succeed in a future attempt, they did not share this information with his parents, physicians, or the hospital staff. Nally's parents did not support having their son involuntarily committed and Ken was released from the hospital. About a week later, Nally used a shotgun to take his own life.

As he learned more about the role of Grace Community Church in his late son's life and, especially, the nature of the counseling Ken had received, Walter Nally came to view the church as a "cult," believing, as well, that Grace's pastoral counselors were the cause of Ken's suicide (p. 35). Engaging the services of an Los Angeles solo practitioner who specialized in personal injury law, in 1980 the Nallys brought suit against the church, its pastor, and three pastoral counselors, claiming clergy malpractice, negligence, and outrageous conduct, and seeking one million dollars in damages. Grace Church's attorneys countered the claims with defenses based on the First Amendment, the Nallys' own negligence toward Ken, and the Nallys' failure to establish a legal cause of action.

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Weitz's account carefully follows the case through the California judicial system. After the original trial court judge dismissed the case for lack of sufficient evidence, the Court of Appeal reversed and ordered the case to go to trial. In Superior Court, after the conclusion of the plaintiffs' arguments, the judge granted the Church's motion for nonsuit. Again the Court of Appeal reversed. This time, the Church appealed to the California Supreme Court, where former U. S. Solicitor General Rex Lee argued on its behalf. The state high court dismissed the case, ruling that the Church and its pastoral counselors had established no "special relationship" with Ken Nally and thus had no "legal duty" that would render it responsible for his death (p. 169). Briefly, Weitz notes that the Nallys unsuccessfully sought a writ of certiorari from the U.S. Supreme Court.

Weitz argues that NALLY is a landmark case, writing in his Introduction, "Oliver Wendall Holmes defined a landmark case as one that 'exercises a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.' NALLY v. GRACE COMMUNITY CHURCH is such a case." NALLY's landmark status is not demonstrated, however, even by what Weitz, himself, writes. Other suits had been brought-granted, with no success-charging clergy malpractice. The ultimate outcome of the NALLY litigation, moreover, makes this case not so much a landmark as one more brick in a path that could be labeled "status quo." Before the Nallys' suit, many churches-like Grace Community Church-worried about the possibility of clergy malpractice suits. That is why churches-again, like Grace Community Church-carried malpractice insurance. However, courts nationwide had moved very cautiously in areas that might bring the state into the internal practices of churches, at least for established denominations. Although the decisions of the California
intermediate appellate court had the potential of breaking away from the well-trod path of non-interference, the state Supreme Court twice reversed the appellate decisions and the U. S. Supreme Court denied cert when the Nallys challenged the final outcome in the state litigation. Still, even if NALLY is not a landmark case of the stature of MARBURY v. MADISON (1803), LOCHNER v. NEW YORK 1905), or BAKKE v. REGENTS (1978)--some of the cases addressed by other volumes in the Kansas series--Weitz's work has much to recommend it.

Most important to note is the author's exceptionally well-balanced account of the lawsuit. Weitz does not take sides; there are no villains in this story. Rather, Weitz takes scrupulous care in presenting the issues as the participants saw them, writing with sympathy for the Nallys

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and respect for the religious principles of Grace Community Church and its leaders.

Weitz identifies himself as an historian interested in religion and community. CLERGY MALPRACTICE IN AMERICA clearly succeeds as a valuable work of social history. Discussions of such topics as Protestant fundamentalism, the increasing dependence on paraprofessionals for the provision of psychological counseling services, and the social development of southern California are skillfully interwoven with the history of the NALLY litigation. These digressions do not detract from the primary topic of the book, but rather place this lawsuit-and, hence, the law-in a richer context.

This book also is worthwhile for its focus on tort law and the role of state courts, concerns that are rarely addressed in interesting, readable, balanced works on contemporary legal issues. A student brought home the need for more attention to these, and similar, topics in undergraduate courses when she complained last fall that no one ever talks about anything except the Supreme Court. Even allowing for students' propensity for exaggeration, political science faculty surely acknowledge a tendency to focus on the tip of the judicial iceberg. Works like CLERGY MALPRACTICE IN AMERICA help remind those of us with a Supreme Court orientation of the "good stories" that can be told about other courts and non-Constitutional issues.

To return to an earlier point-there are no villains in this book. Moreover, the protagonists and their causes are not without flaws. Ultimately, it is this aspect of the book that has led me seriously to consider adopting it for an undergraduate course. The suicide of Ken Nally will surely touch students. They are also likely to see the implications for counseling paraprofessionals-religious or secular-should the Nally's arguments have prevailed. Weitz raises tough questions with no easy
answers. This makes for a good teaching vehicle.

CLERGY MALPRACTICE IN AMERICA is not without problems, largely the result of editorial practice for the Landmark Law Cases series. The book has no notes or references, merely a bibliographic essay. Although bibliographic essays can overcome the lack of scholarly documentation to a certain extent, Weitz's essay is too brief and general to be of much use. In another book from this series-RELIGIOUS FREEDOM AND INDIAN RIGHTS-author Carolyn Long (2000) provided the kind of detailed essay that Weitz could have written. A good book should encourage, and assist, the reader who wants to know more about the book's subject. It was particularly frustrating, therefore, to find that CLERGY MALPRACTICE IN AMERICA contains not a single legal citation to any of the NALLY litigation. This thought provoking book deserves better.

REFERENCE:

Long, Carolyn N. 2000. RELIGIOUS FREEDOM AND INDIAN RIGHTS: THE CASE OF OREGON V. SMITH. Lawrence: University Press of Kansas.

CASE REFERENCES:

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

MARBURY v. MADISON, 1 Cranch 137 (1803).

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NALLY v. GRACE COMMUNITY CHURCH OF THE VALLEY, 763 P 2d 948 (Cal. 1988).

REGENTS OF THE UNIVERSITY OF CALIFORNIA v. BAKKE, 438 U.S. 265 (1978).

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Copyright 2002 by the author, Susan E. Grogan.