Thursday, January 11, 2007

US Court: Vatican Liable For Abuse Claim

A just-released decision from a Federal District judge in Louisville green-lights an abuse-related civil suit seeking damages from the Holy See. Several of the counts, however, were dropped:
The ruling by U.S. District Judge John G. Heyburn II allows three men to pursue negligence claims against the Vatican over allegations of sexual abuse by priests in the Archdiocese of Louisville.

The men alleged that the Vatican knew or suspected some of its priests or bishops were child molesters, but failed to warn the public or local authorities about them because of a policy prohibiting it.

The lawsuit claims the Vatican was negligent for failing to notify law enforcement officials or the public. It seeks unspecified damages.

Heyburn had previously dismissed parts of the lawsuit that sought damages for sex abuse allegations outside the United States.

The case is the first sexual abuse lawsuit to name the Vatican as sole defendant.

William McMurry, the Louisville-based attorney for the three men, said the ruling opens the way to take depositions of Vatican officials and to get copies of church records and documents.

"It's historic," McMurry said. "Our whole purpose is to hold the Vatican accountable."...

Last June, a federal court in Oregon issued a similar decision in the case of an accused priest who had been moved from Ireland to archdioceses in Chicago and Portland. The judge ruled there was enough of a link between the Vatican and the priest for him to be considered a Vatican employee under Oregon law. That ruling has been appealed.

Many lawsuits stemming from the U.S. church sex abuse crisis have named the pope, the Vatican and other high-ranking church officials, but they failed because the officials could never be served with the papers.
Whispers has obtained a copy of the 18-page decision. Some snips:
This Court has previously ruled that the Holy See is considered a foreign state, and, therefore the Foreign Sovereign Immunity Act (“FSIA”) governs any claims against it. Defendant now challenges the Court’s subject matter jurisdiction under FSIA. Applying FSIA and its various exceptions present a number of novel, complex, and intertwined questions. The Court ultimately concludes that some of Plaintiffs’ claims premised upon the acts and omissions of Holy See officials and employees within the United States fit within the federal court jurisdiction under FSIA....

The critical question then becomes whether the agents discussed above – the United States-based archbishops, bishops, and other clergy of the Roman Catholic Church – are officials or employees of the Holy See as defined in FSIA. This is not an easy question to answer. FSIA allows actions against foreign sovereigns only where “money damages are sought against a foreign state for personal injury. . . occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” 28 U.S.C. § 1605(a)(5) (emphasis added).

The FSIA provides no definition of “official” or “employee.” Whether the American
Catholic archbishops, bishops, and other clergy are employees of the Holy See would appear to be a question of Kentucky state law. ... “Under Kentucky law the right to control is considered to be the most critical element in determining whether an agency relationship exists.”...

Here, Plaintiffs have alleged that the Holy See exercises substantial control over the Catholic archbishops, bishops, and other clergy based in the United States. Specifically, they assert that the Holy See has “absolute and unqualified power and control . . . over each and every priest, bishops, brother, sister, parish, diocese, archdiocese, and instrumentality of the Church.” See Complaint at 11. These asserted allegations are sufficient to state a prima facie case that the Holy See exercises substantial control over the archbishops, bishops, and other Catholic clergy in the United States. Therefore, the burden shifts to the Holy See to prove that the exception does not apply.

The Holy See has declined to provide such evidence at this time, and therefore the Courtconcludes at this time that the Holy See does exercise control substantial enough to justify a conclusion that those persons are “employees” of the Holy See for the purposes of FSIA. However, facts may emerge during the litigation that allow the Holy See to meet its burden, and thus the Court is willing to reexamine its ruling on this issue at an appropriate time.

Even if the bishops and clergy of the Roman Catholic Church are ultimately deemed tobe officials or employees of the Holy See, the Court must address a final issue: whether those employees or officials were acting within the scope of their office or employment when they engaged in the conduct alleged here. For conduct to be within the scope of employment, the conduct must be “of the same general nature as that authorized or incidental to the conduct authorized.” Wood v. Southeastern Greyhound Lines, 194 S.W.2d 81, 83 (1946).

To be sure, under Kentucky law, a priest’s sexual misconduct is outside the scope of
employment and thus his employer cannot be held liable for that misconduct. ... Plaintiffs allege that Defendant’s agents in the United States, pursuant to directives from Defendant Holy See, committed various acts and omissions in covering up and otherwise failing to properly address the issue of childhood sexual abuse in the Catholic Church and its entities. Those policies, Plaintiffs allege, led to their injuries. If, as Plaintiffs allege, these bishops, archbishops, and other clergy followed a written or unwritten policy established by the Holy See, they certainly acted within the scope of their office or employment....

Several matters remain for discussion. First, Defendant Holy See asserts that the First Amendment bars Plaintiffs’ claims. This Court has previously ruled that this litigation applies only to the Defendant as a foreign state, not as the head of an international religious organization. Foreign sovereigns do not enjoy rights derived from the United States Constitution. Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 97 (D.C. Cir. 2002) (“Never has the Supreme Court suggested that foreign nations enjoy rights derived from the Constitution, or that they can use such rights to shield themselves from adverse actions taken by the United States”). Defendant Holy See cannot simultaneously seek the protections of the FSIA and the United States Constitution. Therefore, the First Amendment does not bar Plaintiffs’ claims.

Second, Defendant asserts that Plaintiff’s claims should be dismissed for lack of standing because Plaintiffs’ injuries are not fairly traceable to the conduct of Defendant. At this stage of the litigation, Defendant’s assertion is merely a conclusory statement without legal or factual support. Therefore, standing does not bar Plaintiffs’ claims.

Third, Defendant asserts that the doctrine of international comity bars Plaintiffs’ claims. The FSIA represents the position of the United States government on the doctrine of international comity. The FSIA is an exercise of Congress’ “undisputed power to decide, as a matter of federal law, whether and under what circumstances foreign nations should be amenable to suit in the United States.” Universal Consol. Companies, Inc. v. Bank of China, 35 F.3d 243, 246 (6th Cir. 1994) (emphasis added). The FSIA represents Congress’ determination as to “whether and how foreign states may be sued in American courts.” Id. The doctrine of international comity is indeed an important one, but the FSIA is the proper framework for
American courts to apply in cases where the doctrine is asserted. This Court has already addressed the FSIA, and thus any further discussion of the doctrine of international comity is unnecessary.

Fourth, Defendant asserts that the FSIA bars Plaintiff’s fraud and misrepresentation claims. Defendant asserts this is the case based on the statutory language of the FSIA, which bars any claims under the FSIA “arising out of . . . misrepresentation [or] deceit.” 28 U.S.C. § 1605(a)(5)(B). Fraud or misrepresentation claims may be made under the commercial activity
exception. See, e.g., Gilson v. Republic of Ireland, 682 F.2d 1022 (D.C. Cir. 1982). However, this Court has already determined that the commercial activity exception does not apply, and thus the language of section 1605(a)(5)(B) applies here. Thus, the plain language of FSIA bars Plaintiffs’ misrepresentation and fraud claims. Plaintiffs have acknowledged as much, both in their Complaint and in their response to Defendant’s motion to dismiss. See Plaintiffs’ Response at 6 n.9 (stating that the fraud and misrepresentation claims “are no longer at issue”). Therefore, those counts are dismissed at this time.

Fifth, Defendant asserts in passing that Plaintiffs’ international law claims must fail because (1) neither the Universal Declaration on Human Rights nor the Convention on the Rights of the Child creates a private right of action and (2) the Plaintiffs have failed to exhaust local remedies. See Defendant’s Reply Brief at 7; Defendant’s Response Brief at 33.

Considering the former argument was brought only in the Reply Brief, this issue is not fully briefed. The Court will not consider it at this time.

In summary, this Court will dismiss the Plaintiffs’ negligence claim that Defendant Holy See failed to provide safe care of children entrusted to the clergy. The Court also will dismiss Plaintiffs’ deceit and misrepresentation claims. However, the Court will deny Defendant’s motion to dismiss as to the failure to report and failure to warn negligence claims and as to all other claims asserted against the Holy See at this time. Therefore, the following claims remain against the Holy See: negligent failure to report, negligent failure to warn, breach of fiduciary duty (insofar as that breach involved the failure to report and the failure to warn), outrage and emotional distress, violations of the customary law of human rights, and claims under the doctrine of respondeat superior. The Court is open to reconsidering its decision that the United States-based bishops, archbishops, and other clergy of the Roman Catholic Church are employees of the Holy See for purposes of FSIA if further contrary evidence emerges during the litigation.