Abuse Cases Delayed by Constitutional Arguments
By Father Bill Pomerleau
Observer [Diocese of Springfield MA]
April 25, 2003
SPRINGFIELD -- As many as 20 lawsuits against various clergy of the Diocese of Springfield could be delayed for months as a Superior Court judge ponders the constitutionality of suing church officials for their supervision of priests accused of sexual abuse.
"I don't think anyone in this room would deny that this is a serious case. I intend to study it quite thoroughly," said Judge Lawrence Wernick after a two-hour hearing April 18 on the constitutional issue of church autonomy.
"I think we're not talking about a decision in a matter or weeks. We're talking about a decision in a matter of months," the judge said, acknowledging that his upcoming ruling could have statewide implications.
The question directly before Judge Wernick is whether Shawn Dobbert, a North Adams man who says he was repeatedly abused by Father Richard Lavigne between 1974 and 1986.
In addition to Father Lavigne, Dobbert has sued the diocese, retired Bishop Joseph Maguire and Father Robert Thrasher for negligence.
His claim against Bishop Maguire, is that he previously knew that Father Lavigne was a likely child molester, but placed in a 'danger zone' where he could harm children.
His claim against Father Thrasher is based on an affidavit from another alleged Father Lavigne victim, who says that Father Thrasher witnessed an incident of abuse and did nothing about it.
Both the diocese and Father Thrasher have repeatedly denied that claim, and he has not been suspended from ministry. Under church law, a bishop can maintain that position only if his diocesan review board finds that an allegation against a priest is patently non-credible or unverifiable.
The truth of what may have happened to Shawn Dobbert, or whose fault it is if he was harmed, is not yet an issue in Judge Wernick's court.
He has first agreed to decide whether the church's supervision of Father Lavigne is an issue which can be judged by the courts.
Diocesan attorney John Egan, citing numerous cases dating to the 1860s, argued that First Amendment religious rights are preeminent under the federal and state constitutions. Citing an affidavit from Father Daniel Foley, as diocesan canon lawyer, he outlined how in Catholic belief, the relationship of a priest to his bishop is different than that of an employee to a secular employer.
He argued that while a diocese might be found liable for covering up abuse or deliberately creating a situation for abuse to occur, its bishop or other official cannot be held liable for its normal assignment of priests who later turn out to be abusers.
"If the legislature were to pass a law setting out qualifications for ministry, we would immediately understand how that would be unconstitutional. Another branch of government, the judiciary, cannot do that either," Egan said.
John Stobierski, the attorney for Dobbert and 19 other persons with claims against clergy and/or the church, argued that bishops wanted to be essentially "above the law." He said that, in the end, he was presenting a "garden variety" liability case that did not infringe on the constitutional right of a church to practice its religion.
"A church can chose to ordain, or not laicize, a pedophile. That would be their religious right. But they must be held liable for these torts (harm)," he argued.
A nearly identical argument was used in February for lawyers for the Archdiocese of Boston, which asked Superior Court Judge Constance Sweeney to dismiss 500 cases against the archdiocese and its leaders.
Judge Sweeney ruled against the church, ruling that a prohibition on inquiring into clergy personnel policies would allow the church blanket immunity from civil lawsuits.
The archdiocese appealed her ruling to Appeals Court Justice Scott Kafker, who ruled that further arguments on the constitutional issue should wait until further facts about individual cases come to light at trial.
Judge Wernick, an alumnus of the Harvard Law School, said he was "intrigued" by Justice Kafker's ruling. After hearing opinions from lawyers from both sides in the Springfield case, he ruled that he would not allow pre-trial arguments to proceed until the constitutional issue was settled.
As efforts to reach an out-of-court settlement in the Boston cases drag on, the archdiocese has not yet decided to appeal their cases to the high court. If Judge Wernick were to rule in favor of the church here, the state Supreme Judicial Court would almost certainly have to chose between conflicting Superior Court rulings in Springfield and Boston.
The latest local hearing also made public certain developments in the clergy sex abuse saga.
Stobierski told Judge Wenick that discovery, or the taking a statement by parties and witnesses in other cases, has begun. He also noted that while the diocese has voluntarily given him 160 documents in its possession concerning Father Lavigne, he has not yet seen 2000 pages of other material about the suspended priest.
Those materials are now being reviewed by Superior Court Judge Peter Velis to determine if they should be released to the plaintiff and the public.
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