Appeal to Clergy Sex Ruling Could Affect Future Cases

By Betsy Webster
KCTV
January 2, 2014

http://www.kctv5.com/story/24345902/appeal-to-clergy-sex-ruling-could-affect-future-cases

[with video]

A Missouri Court of Appeals is questioning a legal rule that has essentially treated religious schools differently from public schools when it comes to child sex crimes.

The case in question involves a man who recently reported a crime he says happened 40 years ago at the hands of his priest and teacher at St. Elizabeth's in Waldo.

David Tate filed the lawsuit against Father Michael Tierney and the Diocese of Kansas City and Saint Joseph in 2011. He said he had repressed memories of his abuse until he heard of other victims filing suit.

It was the early 1970s. Tate was an eighth-grader at St. Elizabeth's School. Tierney was his teacher and the priest who supervised altar boys at the church. Tate was an altar boy at the time.

Tate's lawyer says Tierney's supervising priest was aware that he was a risk around children.

"At least months before David Tate was abused, another individual had a similar experience, and he went to Father Thomas Reardon and told Father Thomas Reardon about the experiences," said attorney Rebecca Randles. "And that child was told, 'It's normal. Don't worry about it. And don't tell anyone.'"

But a circuit court threw out the suit against the diocese, saying the diocese could not be held liable because the alleged abuse happened off of church property.

"Everything the priest was doing grew out of the responsibilities to the church, even though he was taking the child off premises," said Randles. "It was during the school day, and he was taken from the school to the (priest's) mother's house with the idea that he was going over to help the priest move boxes."

Randles says that logic would apply if Tierney had been a teacher at a public school.

"When a teacher takes a child off premises, [the supervising authorities] are still responsible for the violation of that confidence because the teacher has so much of a powerful role in the life of that child," said Randles. "Well, a priest is the same way."

The trouble is that the Missouri Supreme Court ruled 16 years ago that religious institutions don't have the same the kind of liability that applies to public schools, police departments, trucking companies, remodeling corporations or any other kind of employer. That ruling came in a 1997 case, Gibson v. Brewer.

"Missouri created a whole new cause of action called ‘intentional failure to supervise clergy,'" Randles said.

The court ruled that many ordinary standards of negligence would amount to "excessive entanglement between church and state (which) has the effect of inhibiting religion, in violation of the First Amendment."

That church-specific variety of wrongdoing essentially said a religious institution could be accountable for its employees' actions only if the institution had specific knowledge of previous activity that would suggest that "harm was certain to occur or substantially certain to occur" and no action was taken to minimize that risk.

The allegation that the diocese knew about the risk of sexual abuse with Tierney would fit that level of wrongdoing, Randles said, but there was one other element in the Gibson case that caused a sticking point.

The court enumerated a number of requirements for Intentional Failure to Supervise Clergy.

The last item was "the other requirements" of a section of common law that is briefly called Restatement 317. One of those requirements is that the wrongdoing must occur on premises controlled by the employer.

Restatement 317 is not specific to religious institutions. It applies in many circumstances.

In the Gibson case, the actions did occur on church premises. But the Tate case under review now did not.

That is why the Western District Court of Appeals dismissed it. But it did so while expressing concern about the on-premises provision and asking that the Supreme Court take a closer look at which common law sections could apply.

Presiding Judge Mark Pfeiffer seemed to have some sympathy for the argument that Restatement 317 is not the only rule that could apply in the case of sexual abuse by clergy.

"It made sense for Gibson to rely upon section 317, because in Gibson, the tortuous acts of the priest did, in fact, occur on property," Pfeiffer wrote.

The judge pointed to other parts of the Gibson decision that seemed to stress the employer's knowledge as being more significant than where the act(s) occurred and referred to a different section of a more recent version of the common law that he considered more relevant to the present case.

That section refers to a type of employer or organization which has "a special relationship" with those being cared for by its employees.

Because prior cases determined on that section were not clergy sex abuses cases, the Appeals Court had no authority to rule based on that, but Pfeiffer quietly asked the Supreme Court to accept the case in order to "clarify" things.

Randle hopes that happens for the sake of her client's case and others that may come along in the future.

"Children should be the same amount of safe at a public school and at a parochial school," she said.

The diocese told KCTV5 it had no comment on the pending legal matter.

Randles said she plans to file the Supreme Court appeal later this week. She expects a decision to be made within a month.