         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                            NOT FINAL UNTIL TIME EXPIRES TO
                                            FILE MOTION FOR REHEARING AND
                                            DISPOSITION THEREOF IF FILED

FR. VINCENZO RONCHI,

      Petitioner,

 v.                                              Case No. 5D18-194

STATE OF FLORIDA AND LOREN
TIM BURTON,

      Respondents.

________________________________/

Opinion filed June 15, 2018

Petition for Certiorari Review of
Order from the Circuit Court
for Orange County,
John Marshall Kest, Judge.

Kevin W. Shaughnessy, Caroline M.
Landt, and Meagan L. Martin, of Baker &
Hostetler, Orlando, for Petitioner.

Aramis D. Ayala, State Attorney Ninth
Judicial Circuit of Florida, and Jenny R.
Rossman, Chief, Sex Crimes Unit, and
Cherish Renee Adams, Sex Crimes Unit,
Assistant State Attorneys, Orlando, for
Respondent, State of Florida.

No Appearance for Respondent, Loren
Tim Burton.
PER CURIAM.

       Father Vincenzo Ronchi, a Catholic priest, seeks certiorari review of an order

requiring him to testify in a criminal case regarding certain communications that took place

during the Sacrament of Reconciliation (commonly referred to as “Confession”). We have

jurisdiction.1   Concluding that the trial court’s order contravenes Florida’s Religious

Freedom Restoration Act (“FRFRA”), we grant the petition.

       In June 2017, Loren Burton was charged in a four-count information with

committing sexual offenses against a minor. The charged offenses were alleged to have

occurred when the alleged victim was seven years old and when she was thirteen years

old. The record reflects that the criminal investigation of Burton commenced after the

alleged victim, then seventeen years old, disclosed to her mother that she had been

sexually abused by Burton.

       In August 2017, the State filed a notice of intent to introduce child hearsay

statements at trial pursuant to section 90.803(23), Florida Statutes (2017). That statute

permits the introduction of out-of-court statements made by a child victim with a physical,

mental, emotional, or developmental age of sixteen or less that describe any act of sexual

abuse against the child provided that, inter alia, the time, content, circumstances or the



       1  Fla. R. App. P. 9.030(b)(2)(A). Certiorari relief is appropriate when an order
departs from the essential requirements of the law and causes material injury to the
petitioner that cannot be remedied on appeal. See Martin-Johnson v. Savage, 509 So.
2d 1097, 1100 (Fla. 1987); see also Nussbaumer v. State, 882 So. 2d 1067, 1071-72
(Fla. 2d DCA 2004) (holding that appellate court had jurisdiction over pastor’s petition for
writ of certiorari regarding his claim of clergy communications privilege over records
relating to his counseling of defendant in child molestation prosecution; pastor did not
have adequate remedy by appeal because he was not party to criminal proceeding, so
only way he could test court’s order to compel him to testify, other than by certiorari, was
to risk contempt citation and then appeal if cited for contempt).



                                             2
       In its written response, the State proffered that the alleged victim, now an adult,

had waived any privilege attached to her prior communications with Ronchi regarding

Burton. The State further argued that the only evidence it had to corroborate the alleged

victim’s anticipated trial testimony was her prior statement to Ronchi.          The State

contended that based on the alleged victim’s waiver, her communications with Ronchi

were no longer privileged under section 90.505. Finally, the State argued that it had a

compelling interest in the successful prosecution of child sexual abuse and that the least

restrictive means to further this strong governmental interest was to compel Ronchi’s

testimony. In a supplemental written response, the State proffered that it would produce

evidence that during a conversation between Ronchi, the alleged victim’s mother, and a

friend of the mother’s, Ronchi had acknowledged the alleged victim’s disclosure of sexual

abuse to him.

       The trial court subsequently conducted an evidentiary hearing. At the hearing, the

mother’s friend testified that during a conversation between her, the alleged victim’s

mother, and Ronchi, Ronchi acknowledged that the alleged victim had previously

disclosed to him that she had been molested by Burton. This conversation took place

shortly after the alleged victim had disclosed the sexual abuse to her mother. The alleged

victim’s mother appeared to have a different recollection of the conversation. In response

to the court’s question as to whether Ronchi had acknowledged that the alleged victim

had previously disclosed the abuse to him, the mother testified “[N]ot directly, but it could

be understood from the conversation.”

       Ronchi did not testify at the evidentiary hearing, but did present the testimony of

Father Joseph Waters, both a priest and a judicial vicar in the Catholic Church. Waters




                                             5
      Upon being served a witness subpoena, Ronchi filed a Motion for Protective Order

Limiting Testimony. In his motion, Ronchi alleged that the State intended to question him

regarding communications that may have taken place between a penitent and Ronchi

during the Sacrament of Reconciliation. The motion further alleged that requiring Ronchi

to testify as to any aspect of a Confession would violate the “sacred seal of the Catholic

Sacrament of Reconciliation” and, as such, would violate Ronchi’s constitutional rights

under the First Amendment to the United States Constitution. Ronchi further alleged that

any such communication would be privileged under section 90.505, Florida Statutes

(2017).3 Ronchi contended that the Catholic Church forbids a priest from disclosing any

aspect of a penitent’s communication during the Sacrament of Reconciliation and, indeed,

is sanctionable by excommunication from the Church.           Ronchi subsequently filed a

supplement to his motion, alleging that the coercion of his testimony would violate FRFRA

(§§ 761.01–.061, Fla. Stat. (2017)).




             (b) In a criminal action, the defendant shall be notified no later
             than 10 days before trial that a statement which qualifies as a
             hearsay exception pursuant to this subsection will be offered
             as evidence at trial. The notice shall include a written
             statement of the content of the child’s statement, the time at
             which the statement was made, the circumstances
             surrounding the statement which indicate its reliability, and
             such other particulars as necessary to provide full disclosure
             of the statement.

             (c) The court shall make specific findings of fact, on the
             record, as to the basis for its ruling under this subsection.
      3 Section 90.505(2), Florida Statutes (2017) provides that a person “has a privilege
to refuse to disclose, and to prevent another from disclosing, a confidential
communication by the person to a member of the clergy in his or her capacity as spiritual
advisor.”


                                             4
       In its written response, the State proffered that the alleged victim, now an adult,

had waived any privilege attached to her prior communications with Ronchi regarding

Burton. The State further argued that the only evidence it had to corroborate the alleged

victim’s anticipated trial testimony was her prior statement to Ronchi.          The State

contended that based on the alleged victim’s waiver, her communications with Ronchi

were no longer privileged under section 90.505. Finally, the State argued that it had a

compelling interest in the successful prosecution of child sexual abuse and that the least

restrictive means to further this strong governmental interest was to compel Ronchi’s

testimony. In a supplemental written response, the State proffered that it would produce

evidence that during a conversation between Ronchi, the alleged victim’s mother, and a

friend of the mother’s, Ronchi had acknowledged the alleged victim’s disclosure of sexual

abuse to him.

       The trial court subsequently conducted an evidentiary hearing. At the hearing, the

mother’s friend testified that during a conversation between her, the alleged victim’s

mother, and Ronchi, Ronchi acknowledged that the alleged victim had previously

disclosed to him that she had been molested by Burton. This conversation took place

shortly after the alleged victim had disclosed the sexual abuse to her mother. The alleged

victim’s mother appeared to have a different recollection of the conversation. In response

to the court’s question as to whether Ronchi had acknowledged that the alleged victim

had previously disclosed the abuse to him, the mother testified “[N]ot directly, but it could

be understood from the conversation.”

       Ronchi did not testify at the evidentiary hearing, but did present the testimony of

Father Joseph Waters, both a priest and a judicial vicar in the Catholic Church. Waters




                                             5
ORFINGER, J., concurs.                                                  Case No. 5D18-194

       I concur entirely with the majority opinion. I write separately to express my view

that the trial judge erred by concluding that Father Ronchi waived the clergy privilege by

allegedly disclosing certain information to the victim’s family.

       There is no doubt that the statement made by the alleged victim to Father Ronchi

during Confession was privileged. Thus, the issue that must be determined is whether

the clergy member can waive the privilege. To answer this question, one must examine

two statutes—sections 90.505 and 90.507, Florida Statutes (2017). Section 90.505(2)

and (3) recognizes that the clergy privilege belongs to the person seeking spiritual advice.

“The privilege does not belong to the member of the clergy, but the clergy may claim the

privilege on behalf of the holder.” 1 Fla. Prac., Evidence § 505.3 (2018 ed.). This is

consistent with section 90.507, which provides that the person who has the privilege

waives it by voluntary disclosure. See 1 Fla. Prac., Evidence § 507.1 (2018 ed.) (“If the

person to whom the privileged communication was made, e.g., a psychotherapist or a

lawyer, discloses the information without the authority from the client or patient, the

privilege is not waived because the holder did not make or consent to the disclosure.”).

Thus, to me, it is clear that while the clergy can assert the privilege, only the penitent can

waive it.

       Even assuming, without deciding, that Father Ronchi disclosed privileged

information to the alleged victim’s family, his actions could not waive the privilege.




                                             10
communications between [Ronchi] and the victim during the Sacrament of Reconciliation,

and [Ronchi’s] impressions, actions or omissions as they relate to communications made

during the Sacrament of Reconciliation.”

       Although the trial court focused on whether the communications between Ronchi

and the alleged victim were privileged under section 90.505 and whether that privilege

had been waived, we believe that this case is controlled by the application of FRFRA.

The Florida Supreme Court has declared that the protection afforded to the free exercise

of religiously motivated activity under FRFRA is broader than that afforded by the

decisions of the United States Supreme Court. Warner v. City of Boca Raton, 887 So. 2d

1023, 1032 (Fla. 2004). Because the protections afforded an individual under FRFRA

are broader than those afforded under the Free Exercise Clause of the First Amendment

to the United States Constitution, it is unnecessary for us to address Ronchi’s argument

that his constitutional rights have been violated by the trial court’s order.4

       FRFRA expressly provides that the government shall not substantially burden a

person’s exercise of religion, even if the burden results from a rule of general applicability,

unless the government demonstrates that the application of the burden to the person is

in furtherance of a compelling governmental interest and is the least restrictive means of

furthering that compelling governmental interest. § 761.03(1), Fla. Stat. (2017).

       A substantial burden on the free exercise of religion is one that either compels the

religious adherent to engage in conduct that his religion forbids or forbids him to engage




       4  Furthermore, Florida courts adhere to the long-standing principle of judicial
restraint that favors avoiding a constitutional question when the case can be decided on
statutory, or nonconstitutional, grounds. See In re Holder, 945 So. 2d 1130, 1133 (Fla.
2006).


                                              7
in conduct that his religion requires. Warner, 887 So. 2d at 1033. In the instant case, the

record establishes that if Ronchi complies with the State’s demand that he testify as to

his communications with the alleged victim during the Sacrament of Reconciliation,

Ronchi would be forced to engage in conduct that is prohibited by the Catholic Church

(and, indeed, would subject him to possible excommunication from the Church). Thus,

the trial court’s order can only be upheld if the State establishes that coercing Ronchi’s

testimony furthers a compelling governmental interest and is the least restrictive means

to further that interest.

       Here, it is undisputed that the State has a compelling governmental interest in

prosecuting sex offenses perpetrated against children. See Grady v. State, 701 So. 2d

1181, 1182 (Fla. 5th DCA 1997) (“We find the charged offense in the instant case, . . . ,

falls within [the] category of crimes where the state has a compelling interest in protecting

underage persons from being sexually abused or exploited.”).

       However, we disagree with the State’s contention that coercing Ronchi to testify

regarding communications that occurred during the Sacrament of Reconciliation, in

contravention of his sincerely held religious beliefs, would be the least restrictive means

to further its compelling governmental interest of prosecuting Burton. First, as the State

acknowledges, the testimony of Ronchi would, at most, be corroborative evidence. There

is no allegation that Ronchi was a witness to any sexual abuse. Second, this case does

not involve a child victim who, because of his or her tender age, might be unable to

adequately testify as to the alleged sexual abuse. The alleged victim in this case is now

an adult, and there is nothing in the record that suggests that she would be unable to

testify as to the relevant events. Third, pursuant to section 90.803(23), the State could




                                             8
seek to have the alleged victim testify as to her purported prior disclosure of sexual abuse

to Ronchi.5

       Because we conclude that the trial court’s order contravenes FRFRA, we grant the

petition and quash the trial court’s order to the extent that it required Ronchi to “respond

to the subpoena and . . . be questioned about the existence of the confession, the identity

of the penitent, and that the subject matter involved sexual abuse.”

       PETITION GRANTED.


TORPY and EVANDER, JJ., concur.
ORFINGER, J., concurs, with opinion.




       5  We would also suggest that authorizing Ronchi to testify that the alleged victim
had made a prior disclosure of sex abuse to him, but precluding him from testifying as to
the details of that disclosure, would raise significant concerns as to Burton’s constitutional
right to confront and cross examine the witnesses against him.


                                              9
ORFINGER, J., concurs.                                                  Case No. 5D18-194

       I concur entirely with the majority opinion. I write separately to express my view

that the trial judge erred by concluding that Father Ronchi waived the clergy privilege by

allegedly disclosing certain information to the victim’s family.

       There is no doubt that the statement made by the alleged victim to Father Ronchi

during Confession was privileged. Thus, the issue that must be determined is whether

the clergy member can waive the privilege. To answer this question, one must examine

two statutes—sections 90.505 and 90.507, Florida Statutes (2017). Section 90.505(2)

and (3) recognizes that the clergy privilege belongs to the person seeking spiritual advice.

“The privilege does not belong to the member of the clergy, but the clergy may claim the

privilege on behalf of the holder.” 1 Fla. Prac., Evidence § 505.3 (2018 ed.). This is

consistent with section 90.507, which provides that the person who has the privilege

waives it by voluntary disclosure. See 1 Fla. Prac., Evidence § 507.1 (2018 ed.) (“If the

person to whom the privileged communication was made, e.g., a psychotherapist or a

lawyer, discloses the information without the authority from the client or patient, the

privilege is not waived because the holder did not make or consent to the disclosure.”).

Thus, to me, it is clear that while the clergy can assert the privilege, only the penitent can

waive it.

       Even assuming, without deciding, that Father Ronchi disclosed privileged

information to the alleged victim’s family, his actions could not waive the privilege.




                                             10
