In a unanimous opinion issued on Jan. 11, 2012, the U.S. Supreme Court held that the Establishment and Free Exercise Clauses of the First Amendment to the U.S. Constitution bar suits brought by or on behalf of ministers against their churches, including suits alleging termination in violation of employment discrimination laws.1 Although prior decisions of U.S. Circuit Courts of Appeal have applied the “ministerial exception” doctrine,2 this was the first time it was adopted by the U.S. Supreme Court. This article discusses the ministerial exception as applied by state and federal courts, including the Wisconsin Supreme Court in Coulee Catholic Schools v. Labor & Industry Review Commission.3 The article also considers the potential application of the doctrine to cases outside the employment-discrimination context.
The ministerial exception was first articulated by the Fifth Circuit Court of Appeals in McClure v. Salvation Army.4 In that case, an ordained minister brought suit against the Salvation Army Church under Title VII of the Civil Rights Act of 1964, alleging discrimination in pay based on sex and retaliatory discharge. Sustaining the Salvation Army’s motion to dismiss, the district court found that the plaintiff’s activities were “connected with carrying on the religious activities” of the church. The Fifth Circuit agreed, holding that investigation into matters such as a minister’s salary, place of assignment, and duties would violate the separation of church and state contemplated by the First Amendment. It thus held that the application of Title VII to the employment relationship between a church and its minister, and judicial scrutiny of employment decisions, would constitute a violation of the Free Exercise Clause of the First Amendment.
Some courts have applied a “primary-duties” test to determine whether an employee qualifies for application of the ministerial exception. Under that test, a position is ministerial if its “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.”5 Some courts have taken a quantitative approach in making this determination.6
Wisconsin’s Path to the Ministerial Exception
While Wisconsin officially adopted the ministerial exception in Coulee (discussed below), the groundwork was laid in a series of decisions that noted limits on the ability of a secular court to determine the validity of religious practices. Free-exercise rights in Wisconsin are based not only on the U.S. Constitution but also on the freedom-of-conscience clauses of the Wisconsin Constitution. “Wisconsin … has, in her organic law, probably furnished a more complete bar to any preference for, or discrimination against, any religious sect, organization, or society than any other state in the Union.”7 For example, any restriction on the opportunity to build a house of worship is a potential burden on religious freedom.8
In considering religious practices, the Wisconsin Supreme Court has held that it is beyond the constitutional jurisdiction of a secular court to judge matters of religious faith or dogma, including whether school practices constitute an exclusive affiliation with a particular denomination.9 At the same time, the court has recognized the state’s right to place limits on religious liberty when doing so is essential to accomplish an overriding governmental interest. The free exercise of rights of citizens can be balanced and safeguarded.10 Thus, the free exercise of religion includes the right to profess one’s faith but not to engage in religious conduct, such as proselytizing, that runs afoul of otherwise valid laws. An incidental limitation on conduct is permissible so long as prohibiting exercise of religion is not the object of a valid law but merely an incidental effect.11
In Pritzlaff v. Archdiocese of Milwaukee,12 the Wisconsin Supreme Court held that claims based on the tort of negligent hiring and retention of a priest who was alleged to have sexually abused children could not be maintained against the Archdiocese of Milwaukee under the U.S. Constitution. For the court to find liability, the plaintiff would have had to establish that the archdiocese was negligent in hiring and retaining the priest because he had been incompetent or otherwise unfit. However, the First Amendment prevented the court from determining what makes a person competent to serve as a Catholic priest, because that would require interpretation of church canons and internal church policies and practices. The resulting inquiry into church laws, practices, and policies would result in excessive entanglement in religion, in violation of the First Amendment.
Similarly, it has been held that claims of negligent supervision of clergy are prohibited by the First Amendment in most, if not all, circumstances.13 Thus, excessive governmental entanglement with religion will occur if the court is required to interpret church laws, policies, or practices. On the other hand, a court may hear an action if it will involve consideration of neutral principles of law.14
Coulee – The Wisconsin Supreme Court Speaks
The complainant in Coulee, Wendy Ostlund, was a teacher in a Catholic elementary school. She taught general education classes, including math, science, and history, but made efforts to incorporate religious “examples, symbols and values” into those subjects. She also taught a religion class and attended school-wide mass with her students. Ostlund’s job description and professional duties required her to be engaged in the “community of the faithful” and to maintain advanced certification in religion. Ostlund, then 53 years old, was notified that her contract would not be renewed after a school closing. She was subsequently replaced by a 35-year-old teacher.
Ostlund filed a complaint with the Wisconsin Equal Rights Division alleging age discrimination in violation of the Wisconsin Fair Employment Act, Wis. Stat. §§ 111.31-.395. The administrative law judge found that Ostlund’s primary duty as a first-grade teacher was to instruct students in a core of secular disciplines even though she also taught religion and led prayers. The Labor and Industry Review Commission (LIRC) agreed that Ostlund’s position was not ministerial and that adjudication of her complaint would not violate the school’s First Amendment rights. That finding was affirmed by the circuit court and the court of appeals.15 Applying the primary-duties test, the court of appeals agreed with LIRC and the circuit court that Ostlund’s position was not ministerial and that the age discrimination proceeding could continue. The school appealed the court of appeals’ decision to the Wisconsin Supreme Court.
The Wisconsin Supreme Court reversed. The court first noted that, “the right to practice one’s religion according to the dictates of conscience is fundamental to our system of government…. We are a nation committed to and founded upon religious freedom.”16 Moreover, approximately 60 years after adoption of the U.S. Constitution, Wisconsin included more specific and more extensive protections for religious liberty in its state constitution.17
The court was mindful of the state’s “strong interest in eradicating discrimination.” Nonetheless, recognition of a church’s authority to make hiring and firing decisions removes such decisions from the jurisdiction of courts with respect to antidiscrimination laws.18
The supreme court then adopted a “functional” approach to the ministerial exception, focusing not on the primary duties of the individual but first, on whether a position is important to the spiritual and pastoral mission of the church, and second, on how important or closely linked the employee’s work is to the fundamental mission of the organization.19
The supreme court found that the teacher played an important religious role in passing on the church’s faith and, therefore, that the Free Exercise Clause of the First Amendment to the U.S. Constitution and the freedom-of-conscience clauses in article I, section 18 of the Wisconsin Constitution preclude employment discrimination claims by employees like Ostlund, whose positions are important and closely linked to the religious mission of a religious organization such as the Catholic Church.
“The state simply has no authority to control or interfere with the selection of spiritual leaders among religious organizations with a religious mission. The text of our constitution states that the law cannot do it – at all.”20 Implicit in the court’s decision was a determination that the age discrimination law was not a neutral tort law in the context of deciding who would minister to the faithful, because the alleged violation of the statute in Coulee was in fact a religious practice, that is, assignment of a religious teacher.
Hosanna-Tabor – The U.S. Supreme Court Speaks
The U.S. Supreme Court had its first opportunity to consider the ministerial exception in a 2012 case, originating from a small school in Redford, Mich., that offered a “Christ-centered education” to students in kindergarten through eighth grade.21
The complainant in Hosanna-Tabor, Perich, had accepted a position as a commissioned minister of religion at the Hosanna-Tabor Evangelical Lutheran church and school. Like the complainant in Coulee, she taught secular subjects as well as a religion class. She also led the class in daily prayer and took her class to a weekly school-wide chapel service. After qualifying through, inter alia, completion of required theological study, she had been “called” to teach by the congregation. Once called, she received the formal title of “Minister of Religion, Commissioned.” At Hosanna-Tabor, a call could be rescinded only for cause, by a supermajority vote of the congregation.
At the beginning of the 2004-05 school year, Perich took disability leave. Eventually the school contracted with a lay teacher to fill her position and offered to pay a portion of Perich’s health insurance premiums in exchange for her resignation. Perich refused to resign and demanded that the school write a letter acknowledging that she was present and able to work. Perich then threatened to take action against the church. The congregation voted to rescind her call, and her employment was terminated. Perich then filed a claim with the Equal Employment Opportunity Commission (EEOC) alleging a violation of the Americans with Disabilities Act (ADA). The EEOC filed suit against the religious school on Perich’s behalf.
The district court granted the school’s motion for summary judgment on grounds that the suit was barred by the First Amendment under the ministerial exception. The Sixth Circuit vacated the district court’s decision. While it recognized the validity of the ministerial exception, it ruled that Perich did not fall within the exception. The church then appealed the Sixth Circuit’s decision to the U.S. Supreme Court.
In a unanimous decision, the Court first found that the ADA does contain a “ministerial exception.” The purpose of the exception is to “ensure that the authority to select and control who will minister to the faithful … is the church’s alone.”22 An order requiring reinstatement would have violated the church’s freedom to select its own minister, and damages would have operated as a penalty for terminating an unwanted cleric.23
The court refused to adopt a rigid formula for determining who qualifies as a minister. However, in finding that the exception applied, it noted that the church had held Perich out as a minister; that hers was a called position, requiring religious training; and that her job duties conveyed the church’s message and carried out its mission. The fact that lay teachers performed the same religious duties was irrelevant. Similarly, that most of her time was spent teaching secular subjects was not determinative as to whether her role was ministerial – the question was not something that could be “resolved by a stop watch.”24 Chief Justice Roberts wrote that while the Free Exercise Clause and the Establishment Clause “often exert conflicting pressures,” both “bar the Government from interfering with the decision of a religious group to fire one of its ministers.”25
The Court limited its adoption of the ministerial exception to suits brought by or on behalf of ministers alleging discriminatory termination, writing that “there will be time enough to address the applicability of the exception to other circumstances if and when they arise.”26
Who is a Religious or Ministerial Employee?
The question thus arises as to when the doctrine will be applied. Under Hosanna-Tabor, courts must now take a functional approach to determine whether a particular employee serves a function important to the spiritual and pastoral mission of the religious institution. This will involve a two-step inquiry: 1) Does the organization in statement and mission exist primarily to worship and spread the faith? 2) How important or closely linked is the employee’s work to the organization’s fundamental mission? Answering these questions requires consideration of hiring criteria, job applications, employment contracts, actual job duties, performance evaluations, and the organization’s understanding or characterization of a position.
First, then, one must determine whether the employee is employed by a “religious institution.” Courts have held that religiously affiliated schools,27 hospitals, and corporations qualify as religious institutions for purposes of the ministerial exception. Examples include a school that emphasized both Native American culture and spirituality; an elder-care center marked by clear or obviously religious characteristics; and a church-affiliated hospital with a substantial religious character.28
With respect to the second part of the test, the ministerial exception has been held to apply to cases involving priests;29 a pastoral-care associate;30 a church music director and organist;31 teachers charged with integrating church doctrine into their teaching;32 employees who ran an adult rehabilitation center that incorporated prayer and worship;33 a teacher at a Catholic elementary school who did not teach religion but attended Catholic ceremonies with her students and participated in faculty-development efforts aimed at helping teachers impart “Catholic values”;34 and a communications manager.35
In contrast, the exception has been found inapplicable in cases involving a typist-receptionist providing clerical services for a church;36 a director of affairs whose primary duties did not include religious ritual or worship;37 a minister who applied for a position as a community developer and who was not required to lead services, act as a pastoral counselor, or have religious training;38 a psychology professor at a college operated by a religious organization;39 an administrative vicar, who collected and maintained church documents but did not independently rule on doctrinal legitimacy or in any other way perform pastoral duties;40 and an editorial secretary at a church-affiliated publishing company.41
Types of Employment Claims Barred
In decisions since McClure (in which the ministerial exception was first applied), federal courts have held that the ministerial exception barred claims in the following areas: racial or national-origins discrimination;42 sex discrimination;43 discrimination based on sexual orientation; sexual harassment;44 disability;45 retaliation;46 hostile work environment;47 unpaid and overtime wages under the Fair Labor Standards Act;48 and violation of due process.49
In addition, several states have applied the ministerial exception to, for example, bar application of state libel laws50 and state wage-and-hour laws.51
Application Outside of Employment Field
The U.S. Supreme Court has expressed no view on application of the doctrine to bar other claims, including actions by employees alleging breach of contract or tortious conduct by their religious employers.52 However, extension of the doctrine to other types of claims is logical and seemingly inevitable.
Breach of Contract. On July 12, 2012, in DeBruin v. St. Patrick Congregation, a plurality of the Wisconsin Supreme Court found that a breach-of-contract claim was barred by the First Amendment of the U.S. Constitution and article I, section 18 of the Wisconsin Constitution. It was uncontroverted that the plaintiff was a ministerial employee of St. Patrick. Applying the ministerial exception, the court held that the complaint failed to state a claim upon which relief could be granted.53
DeBruin was director of faith formation for St. Patrick. Her contract provided that she would not be discharged “without good and sufficient cause, which shall be determined by the PARISH.”
The majority opinion concluded:
“Permitting the continuation of this type of breach of contract or promissory estoppel claim by a ministerial employee who seeks payment based on an allegedly improper reason for being terminated from her employment, would impermissibly interfere in a religious institution’s choice of ministerial employees, in violation of the First Amendment of the United States Constitution and Article I, Section 18 of the Wisconsin Constitution.”54
Therefore, a court would not be permitted to review whether St. Patrick improperly terminated a ministerial employee because the church’s choice of who shall serve as its ministerial employee is a matter of church governance protected from state interference by the Constitution. The complaint would have required a state court to evaluate why St. Patrick had terminated its ministerial employee, and therefore the complaint failed to state a claim.55 “[C]ivil courts are prohibited from delving into the reasons for religious-based decisions.”56 This included any questioning of St. Patrick’s good faith in terminating DeBruin’s employment.57
Fraud. Following its decisions holding that there can be no liability for negligent hiring or retention of a Catholic priest, in reviewing a motion to dismiss a fraud claim in John Doe 1 v. Archdiocese of Milwaukee58 the Wisconsin Supreme Court held that a religious institution may be liable for intentional misrepresentation in a situation in which it failed to disclose that a priest had engaged in abusive conduct before permitting him to continue to minister to the faithful. The case involved allegations that the church had made misrepresentations by transferring priests and then permitting them to continue to minister, thereby “covering up” and concealing past transgressions. However, the archdiocese had specifically eschewed any constitutional argument.59 Therefore, the court did not address whether the First Amendment (or the Wisconsin Constitution) prohibited the plaintiff’s negligent supervision or fraud claims because the issue had not been brought before it.
Key to the claim of fraud would be an argument that the church should have defrocked or removed a clergy member, disclosed his or her past, barred transfer, made a different placement, or prevented him or her from having contact with others or from ministering to the faithful, so as to avoid a claim of misrepresentation by conduct or omission. However, judicial review of clergy hiring, firing, and transfer decisions and of religious discipline would require a court to invade the province of the church and, by imposing liability, punish institutions for religious actions.
That does not necessarily mean that the clergyperson himself or herself would be immune from criminal or civil liability (see Wis. Stat. § 895.442) for abuse. Rather, it would mean that, as in Coulee, the institution itself may be constitutionally immune under Pritzlaff, as well as Coulee, based on its religiously suffused employment decisions. Such a review, and the imposition of liability, arguably would violate the First Amendment, as well as the more expansive protections of the Wisconsin Constitution.60
In Pritzlaff v. Archdiocese of Milwaukee, the Wisconsin Supreme Court held that allegations that a church was negligent in permitting a priest to practice and that the church should have treated the priest differently would implicate the First Amendment. Thus claims for negligent hiring, retention, training, and supervision would be barred under the U.S. Constitution.61
Whether a religious institution should, in response to a priest’s or minister’s inappropriate behavior, bar the wayward employee from working rather than, for example, resort solely to prayer, penitence, redemption, and treatment, would arguably be a matter for church law, practice, and beliefs, and therefore an improper subject for judicial determination.62 If the First Amendment prevents courts from determining what makes one able to serve as a Catholic priest,63 then arguably the same would be true for imposition of liability under a fraud theory.
Just as the ministerial exception bars a court from interfering with decisions involving the employment of a religious person, arguably it would also affect lawsuits in which plaintiffs argue that a church committed fraud by acting or failing to act in permitting a priest to continue to minister and be employed as a member of the clergy rather than firing the priest, taking disciplinary action, or giving notice or warning to all persons with whom the priest came into contact.
Kenneth B. Axe, U.W. 1979 cum laude, is a partner with Boardman & Clark LLP, Madison, focusing on business litigation. Reach him at com kaxe boardmanclark boardmanclark kaxe com.
Despite having shown a marked reluctance to intercede in matters requiring a determination as to what constitutes a religion, in applying the ministerial exception to bar liability in employment cases, the courts have had to determine just what is a religious institution and who plays a religious role in the functions of religious institutions. The U.S. Supreme Court’s view is clear:
“The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.... Requiring a church to accept and retain an unwanted minister or punishing a church for failing to do so … interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”64
The same arguably would be true with respect to requiring the church to fire a minister. Thus the courts have found that religious groups’ interest in choosing “who will preach their beliefs, teach their faith, and carry out their mission” outweighs the societal interest in enforcement of employment discrimination statutes, because a “church must be free to choose those who will guide it on its way.”65
In making such determinations, the courts have been “reluctant … to adopt a rigid formula for deciding when an employee is qualified and or ministerial.”66 Instead they first fashioned a primary-duties test, focusing on the job tasks of the employee, and in some cases even weighing them and determining whether such duties tipped the scale in favor of a finding of a religious role.
Following the decisions in Coulee and Hosanna-Tabor, Wisconsin attorneys faced with employment discrimination claims against a religious institution must now instead apply a functional test to determine whether the claim is barred. The inquiry shifts to determining the employer’s primary mission and the employee’s role in pursuing that mission. Moreover, as the doctrine has expanded, in an appropriate case the holdings may be extended beyond the employment context to bar tort claims involving failure to supervise, discipline, or “fire” a clergyperson. In such cases, again, the balance must weigh in favor of protecting the freedom of religion at the heart of the First Amendment and Wisconsin’s freedom-of-conscience clauses.
1 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694 (2012).
2 See generally Blum, Annotation, Application of First Amendment’s “Ministerial Exceptions” or “Ecclesiastical Exceptions” to Federal Civil Rights Claims, 41 A.L.R. Fed. 2d 445 (2009).
3 Coulee Catholic Sch. v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.
4 460 F.2d 553 (5th Cir. 1972).
5 Rayburn v. General Conference of Seventh Day Adventists, 772 F.2d 1164, 1169 (4th Cir.1985) (citation omitted).
6 Coulee Catholic Sch., 2009 WI 88, ¶ 44, 320 Wis. 2d 275 (citations omitted).
7 State ex. rel. Reynolds v. Nusbaum, 17 Wis. 2d 148, 165, 115 N.W.2d 761 (1962).
8 State ex. rel. Lake Drive Baptist Church v. Village of Bayside Bd. of Trustees, 12 Wis. 2d 585, 108 N.W.2d 288 (1961).
9 Holy Trinity Cmty. Sch. Inc. v. Kahl, 82 Wis. 2d 139, 262 N.W.2d 210 (1978).
10 Sacred Heart Sch. Bd. of Directors v. LIRC, 157 Wis. 2d 638, 460 N.W.2d 433 (Ct. App. 1990) (in age-discrimination case, noting that court cannot award a religious employer a talisman to protect it from all discrimination lawsuits).
11 Lange v. Lange, 175 Wis. 2d 373, 502 N.W.2d 143 (Ct. App. 1993).
12 194 Wis. 2d 302, 533 N.W.2d 780 (1995).
13 L.L.N. v. Clauder, 209 Wis. 2d 674, 563 N.W.2d 434 (1997), rev’g 203 Wis. 2d 570, 552 N.W. 879 (Ct. App. 1996).
15 Coulee Catholic Sch., 2009 WI 88, ¶¶ 20-30, 320 Wis. 2d 275.
16 Id. ¶ 32.
17 Id. ¶ 33.
18 Id. ¶ 40.
19 Id. ¶¶ 45, 49.
20 Id. ¶¶ 63, 88.
21 Hosanna-Tabor, 132 S. Ct. 694.
22 Id. at 709.
26 Id. at 710.
27 Shukla v. Sharma, 2009 U.S. Dist. LEXIS 90044 (E.D.N.Y. Aug. 14, 2009) (citing EEOC v. Catholic Univ., 83 F.3d 455, 461 (D.C. Cir. 1996)).
28 State v. Indian Cmty. Sch. of Milwaukee, 351 F.2d 858, 869 (E.D. Wis. 2004) (citing Shaliesabou v. Hebrew Home of Greater Wash. Inc., 363 F.3d 299 (4th Cir. 2004), and Sharon v. St. Luke’s Episcopal Presbyterian Hosp., 929 F.2d 360, 362 (8th Cir. 1991)).
29 Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008).
30 Rayburn, 772 F.2d at 1170.
31 Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006), abrogated on other grounds by Hosanna-Tabor, 132 S. Ct. 694.
32 Adams v. Indiana Wesleyan Univ., No. 3:09-CV-468, 2010 WL 2803077 (N.D. Ind. July 15, 2010).
34 Schleicher v. Salvation Army, 518 F.3d 472 (7th Cir. 2008).
35 Little v. Wuerl, 929 F.2d 944, 945 (3d Cir. 1991); Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 702-03 (7th Cir. 2003).
36 Whitney v. Great N.Y. Corp. of Seventh-Day Adventists, 401 F. Supp. 1363 (S.D.N.Y. 1975).
37 Leaphart v. American Friends Serv. Comm., No. Civ. A. 07-4919, 2008 WL 4682626 (E.D. Pa. Oct. 22, 2008).
38 Shirkey v. Eastwind Cmty. Dev. Corp., 941 F. Supp. 567, 577 (D. Md. 1996).
39 EEOC v. Mississippi Coll., 626 F.2d 477 (5th Cir. 1980).
40 Patsakis v. Greek Orthodox Archdiocese of Am., 339 F. Supp. 2d 689 (W.D. Pa. 2004).
41 EEOC v. Pacific Press Pub’g Ass’n, 676 F.2d 1272 (9th Cir. 1982).
42 Rweyemamu, 520 F.3d at 209-10; Alicea-Hernandez, 320 F.3d 698.
43 Alicea-Hernandez, 320 F.3d 698.
44 Bryce v. Episcopal Church in the Diocese of Colo., 121 F. Supp. 2d 1327 (D. Colo. 2000).
45 Cronin v. South Ind. Annual Conference, No. 1:05 CV 1804 LJM WTL, 2007 WL 2258762 (S.D. Ind. Aug. 3, 2007).
46 Young v. Northern Ill. Conference of United Methodist Church, 21 F.3d 184 (7th Cir. 1994).
47 Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 2010); see Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004).
48 Schleicher v. Salvation Army, 2007 U.S. Dist. LEXIS 2836 (S.D. Ind. Jan. 12, 2007).
49 Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir. 1998).
51 Alcazar v. Corporation of the Catholic Archbishop of Seattle, 627 F.3d 1288 (9th Cir. 2010) (en banc); see generally Blum, Annotation, Application of First Amendment’s Ministerial Exception or Ecclesiastical Exceptions to State Civil Rights Claims, 53 A.L.R. 6th 569 (2010).
52 See Hosanna-Tabor, 132 S. Ct. 694.
53 DeBruin v. St. Patrick Congregation, 2012 WI 94, ¶¶ 1-2,343 Wis. 2d 83, 816 N.W.2d 878.
54 Id. ¶¶ 1, 3.
55 Id. ¶ 2.
56 Id. ¶ 20.
57 Id. ¶ 32.
58 2007 WI 95, ¶ 28, 303 Wis. 2d 34, 734 N.W.2d 27.
60 Coulee Cath. Sch., 2009 WI 88, ¶ 66, 320 Wis. 2d 275.
61 Pritzlaff, 194 Wis. 2d at 325-30.
62 Id. at 330; L.L.N., 290 Wis. 2d at 689-90, 694.
63 Pritzlaff, 194 Wis. 2d 326.
64 Hosanna-Tabor, 132 S. Ct. at 703, 706.
65 Id. at 710.
66 Id. at 707.