JACKSON, Miss. — When Ray Mabus, the former governor of Mississippi, discovered that his wife was having an affair, he arranged for a meeting with her and their Episcopal priest. He told the priest, the Rev. Jerry McBride, that he would secretly tape-record the meeting, which took place in the Mabuses' living room.
Neither man told Mr. Mabus's wife, Julie, however, and her remarks were eventually used against her in a custody dispute when the couple divorced.
The taping was legal in Mississippi, where, as in many states, any party to a conversation may record it surreptitiously. But whether a priest must disclose secret taping is an open legal question. Its answer turns on whether members of the clergy have higher duties than ordinary citizens and, if so, whether courts should be able to define them.
A lawsuit filed by Mr. Mabus's ex-wife — now Julie Hines — may help answer those questions. She sued the priest, his church and the Episcopal Diocese of Mississippi last year in the Circuit Court of the First Judicial District of Hinds County alleging clergy malpractice and fraud, among other things. She did not sue her former husband.
Legal experts said that claims of clergy malpractice had uniformly failed, though more general claims against members of the clergy and their churches for breaches of special relationships of trust occasionally succeeded. In general, said Douglas Laycock, a law professor at the University of Texas, the courts do not and should not second-guess churches and clergy members.
But in this case, he said, "It is hard to have a whole lot of sympathy for the priest because there is no plausible reason for doing what he did."
In the Mabus case, the taping was elaborate, and apparently yielded the desired result.
"I think there were three tape recorders," Mr. Mabus testified in a deposition. "One was in my pocket, one was next to a TV set, and one was on top of a piece of furniture."
A transcript of the recording of the 1998 meeting sets out Ms. Hines's acknowledgment of an affair and her threat to turn their children against Mr. Mabus.
"I hate you," she said to her husband. "I hate you with my very soul. I will hate you till the day I die. And I will tell my children. I will tell my children."
In the divorce proceedings that followed, a psychiatrist hired by Mr. Mabus referred repeatedly to this statement in recommending that Mr. Mabus be granted legal custody of their two daughters. The court accepted the recommendation, though the former couple have alternate custody of the girls, in six-month intervals.
The custody ruling was unusual, said Mr. Mabus's lawyer, Richard C. Roberts III. "Down here it's a big deal for someone in Julie's position to lose the custody of two young children," he said.
Mr. Mabus, who was governor from 1988 to 1992 and ambassador to Saudi Arabia from 1994 to 1996, is now practicing law here. Ms. Hines, who has a master's degree in business administration from Columbia, is a certified public accountant. In her lawsuit, she seeks compensation for the mental anguish she says she suffered in losing her children and her faith.
In court papers, all the defendants denied legal responsibility. Mr. McBride, who has left the priesthood for reasons he said were unrelated to Ms. Hines's claims, declined to comment, citing the litigation, as did a spokesman for the diocese. Ms. Hines's lawyer, Kathryn N. Nester, said her client would not comment, pending her appearance on a television program next month.
Robert A. Malouf, Mr. McBride's lawyer, said that allowing a court to decide the case violated the First Amendment. "It necessarily embroils the state in the relationship between the church and its parishioner," Mr. Malouf said.
The trial court rejected that argument, and the Mississippi and United States Supreme Courts declined to hear appeals. A second motion to dismiss the case is pending.
The new motion argues that the transcript of the meeting demonstrates that Ms. Hines did not have the sort of relationship of trust and confidence with Mr. McBride that would give rise to legal obligations on his part.
In the transcript, she appeared angry with Mr. McBride, making vulgar threats against him. She also made clear that she did not understand Mr. McBride to be her ally and said she wanted her own representative at the meeting.
Mr. McBride, after Mr. Mabus left the room but with the tape recorders still running, explained why he had not contacted someone to appear on her behalf.
"Julie, I had no right to call anybody, that would have broken a confidence," he said. "I can't legally do that."
Soon after the meeting, Mr. McBride disclosed Ms. Hines's infidelity to two of her friends.
In a statement, Mr. Mabus said he had made the tapes "to preserve without question the statements of all parties present in order to assure that false allegations could not be made as to what was said."
He did not address why he kept the taping secret from his wife but not their priest. His lawyer, Mr. Roberts, said that telling Ms. Hines "would chill and override the effect of the meeting itself."
"If you set a tape recorder out on the table, you would preserve what was said, but you would lose the primary purpose of the meeting, which was to try to save the marriage," Mr. Roberts said.
Eighteen months after the meeting, Ms. Hines visited Mr. McBride to confront him about his role in the taping.
Mr. McBride instead demanded an apology.
"You called me some names that day," he said, "and you never apologized for that, not once."
She said she was sorry, and Mr. McBride proposed a deal.
"If you really mean that, I will forgive you if you will forgive me for anything that I did wrong," he said.
This left Ms. Hines perplexed. "Contingency forgiveness is a strange notion," she said.
The exchange appears in a 53-page transcript of the recording Ms. Hines made of their conversation. Mr. McBride did not know he was being taped.