Bias Analysis – September 7, 2022 Clergy Privilege Motion Order

Preliminary Analysis of Judge Miller’s September 7, 2022 Order (Clergy Privilege)
Bias Rating: -7 (biased toward Defendants)

Summary of Key Issues

1. Framing of the Issue: Judge Miller frames Plaintiffs’ motion for a protective order as overreaching, emphasizing that the emails were acquired “outside of discovery” and voluntarily by a third-party investigator from Pastor Lobb. However, this framing ignores the core dispute: whether those communications were protected under clergy-communicant privilege regardless of how they were obtained.

⚠️ Problematic Framing: By focusing on “means of acquisition” (i.e., outside formal discovery), the order sidelines the critical question—were the emails privileged—and whether Defendants intentionally bypassed proper legal procedures to avoid privilege review.

2. Legal Standard for Clergy-Communicant Privilege: Judge Miller accurately recites the legal test under Minn. Stat. § 595.02, subd. 1(c) and State v. Orfi, requiring:

• A minister;
• Communication intended to be confidential;
• Communication seeking spiritual advice.

However, his analysis is unduly narrow and dismissive of the second and third prongs. For the emails between Craig and [Craig’s daughter] and Pastor Lobb—which discussed church doctrine and spiritual rejection—Miller finds they sought religious advice but denies privilege on the thin basis that confidentiality wasn’t “explicitly” stated.

⚠️ Elevated Burden: The requirement of an affidavit or explicit statement of confidentiality imposes a heightened and arguably unreasonable evidentiary burden—especially given that these were deeply personal religious emails sent to a pastor.

🔁 Inconsistency: In other areas of the same litigation, Judge Miller accepted silence or ambiguity to Defendants’ benefit (e.g., regarding destruction of messages). Here, he strictly penalizes Plaintiffs for the same ambiguity.

3. Dismissiveness Toward Plaintiffs’ Argument: Judge Miller’s order minimizes Plaintiffs’ concern about unilateral, undisclosed contact with their pastor. He asserts that since no subpoena was issued, there was no violation of procedure, and that First Amendment protections prevent courts from dictating what clergy may share voluntarily. This overlooks a major ethical concern: Defendants used an investigator to evade judicial oversight and deprive Plaintiffs of the opportunity to assert privilege in a timely manner.

🧨 Ethical Double Standard: Plaintiffs cited Defendants’ own prior objections to subpoenas on privilege grounds (e.g., attorney-client), but Miller fails to grapple with this inconsistency or explain why Defendants should now be permitted to circumvent notice protections.

4. Sanctions Against Plaintiffs: The order grants Defendants’ motion for attorney’s fees, claiming Plaintiffs’ motion was not substantially justified. This is especially severe given:

• Plaintiffs cited relevant legal authorities;
• Defendants initially offered partial destruction of documents;
• Privilege claims had at least arguable merit.

🚩 Punitive Sanctions: The award of fees signals hostility toward Plaintiffs’ attempt to assert privilege—especially troubling in a context involving sensitive religious communications.

5. Omissions and Overstatements: Judge Miller:

• Overstates the “voluntariness” of the disclosure without scrutinizing how the investigator presented the request.
• Implies the emails were not private based on generic email formatting (“Bill & Amanda Lobb”) without any inquiry into customary pastoral communication norms.

Hearing Transcript Context

Plaintiffs’ counsel (Wolfgram) repeatedly emphasized:

• Defendants used a third party to sidestep privilege review;
• This violated Plaintiffs’ rights to assert privilege before disclosure;
• Defendants applied a double standard, demanding confidentiality protections for their clients but denying them for Plaintiffs.

Judge Miller acknowledged the arguments but appears to have accepted Defendants’ framing wholesale. For example:

• He did not question why Defendants waited three months to disclose the emails.
• He accepted defense counsel’s self-serving claims at face value (e.g., their claim that they “offered” to destroy the emails).
• He showed no concern about potential prejudice from Defendants’ access to privileged religious content.

Final Rating: -7 (Highly Biased Toward Defendants)

• ✅ Correctly recites the legal standard for clergy privilege.
• ❌ Applies that standard with excessively narrow interpretations, favoring Defendants.
• ❌ Imposes sanctions against Plaintiffs despite a good-faith argument and significant constitutional/evidentiary concerns.
• ❌ Treats the evasion of subpoena protocols as legally irrelevant, effectively rewarding Defendants for circumventing discovery rules.

AI Content DisclosureThe analysis above was generated entirely or primarily by artificial intelligence.