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Fleecing the shepherd (continued)

In 1969, however, the Massachusetts Supreme Judicial Court took note of long-standing complaints that the doctrine was archaic and unjust for victims of such organizations’ negligent and sometimes outrageous conduct. It upheld the immunity in that case — against Carney Hospital — but gave notice that the next time it would abolish what it deemed an outmoded doctrine. In response, the legislature, still protective of the Commonwealth’s large and vibrant (not to mention powerful and influential) charitable sector, enacted a 1971 statute that modified the charitable-immunity defense to limit any such association’s liability for a negligent-conduct claim to $20,000. The legislature thereby hoped to avert the SJC’s threat to abolish all protection for nonprofits. This limitation was upheld by the SJC in a 1989 case. Importantly, the doctrine applies only to activity that is "carried on to accomplish directly the charitable purposes" of the organization.

In the event the Church does press the charitable-limitation defense, it would have to argue that assigning abusive priests to parishes where they had access to children was performed — even if negligently — within the context of the Church’s religious and charitable mission. Such a finding by the courts would protect the institutional Church’s coffers from liability in excess of $20,000 per plaintiff. While it remains uncertain how this question will be resolved if and when the issue makes its way to the state’s highest court, the Church’s position does seem considerably stronger than that of the claimants. And this time, the Church has more reason to press this seemingly strong defense right to the bitter end.

First is the Church’s dire financial predicament, which is now well-documented. Cutbacks are the order of the day. Most disruptive, of course, are the large number of parish closings, and the veritable civil disobedience that has resulted as parishioners have staged sit-ins, refusing to leave churches ordered closed by the Boston archdiocese. Archbishop O’Malley had ordered that 83 of the region’s 357 parish churches be closed. In the wake of parishioner revolts at eight churches, however, the archbishop has backed down — at least temporarily — by giving six of the condemned churches an extension.

The Church has had to face another revolt from its regular donors, who have complained bitterly about funds going toward settlements rather than to the Church’s mission. (As a US District Court judge wrote in a 2000 case involving a lawsuit against a hospital, "Charitable immunity was based on the reasoning that it is improper to divert funds for tort judgments that were donated for charitable purposes.") Recognizing this problem, the Church has been claiming that ordinary contributions will not be used to fund abuse settlements. But, of course, if the Church’s assets are viewed in their totality, any money not coming from insurance coverage would have to come from one or another Church account.

THE CHURCH’S newly invigorated defense was evident a month after the Cullen interview, when the Globe’s David Abel reported that attorney Durso had rejected a $3000 settlement offer made by the Diocese of Worcester to one of his clients, who had come forward with allegations of a 1970 molestation. "These offers are unreasonable, insulting, and un-Christian," said Durso. The Church this time gave a public explanation for the low offer — a bold public move that the Church’s usually tight-lipped leaders and lawyers would not have made during the earlier round of litigation. Diocese chancellor Thomas Sullivan told Abel the offer was so low because the Church is asserting — and presumably will not this time waive — the $20,000 charitable-limitation defense. Sullivan had some recent support for the diocese’s newly tough position. This past August, a Superior Court judge ruled that the charitable limitation did indeed apply in a case where a priest, the Reverend Robert E. Kelley of the Worcester diocese, allegedly molested a female parishioner numerous times when she was between the ages of eight and 14. Furthermore, Sullivan told Abel, "Some of the cases have very weak merits." He added: "You do more for victims of egregious claims than those without as much merit." In other words, some of the new claims simply do not appear to be entirely true.

In addition to the charitable-limitation doctrine, the Church has a possible defense under the US Constitution’s First Amendment. In NAACP v. Claiborne Hardware Company, a landmark 1982 case against the National Association for the Advancement of Colored People, the Supreme Court ruled that a non-commercial organization performing certain First Amendment–protected activities cannot be hit with a money judgment solely on the basis of wayward members’ and even officials’ unlawful activities, unless the organization as a whole can be said to have adopted and encouraged those activities. (The case dealt with the NAACP’s organization of a merchant boycott, which was covered by the First Amendment’s guarantees of freedom of speech and freedom of association.) The court declared that an entire such organization may not be held liable, and thereby destroyed, on the basis of wayward and disapproved actions of deviants within its ranks, and that such deviants do not, unless they are acting with the express knowledge and approval of the organization, define the organization. "A court must be wary of a claim," wrote Justice John Paul Stevens on behalf of the court, "that the true color of a forest is better revealed by reptiles hidden in the weeds than by the foliage of countless freestanding trees." As an organization covered by another clause of the First Amendment — namely, that which protects the "free exercise" of religion — the Church could invoke this precedent. To succeed, it would need to demonstrate that the abuse committed by priests was not Church policy and was not approved at the highest levels — a contention the plaintiffs would no doubt dispute. But even the worst cynic would be hard-pressed to say that child sex abuse was actual Church policy, even if the Church appears to have turned a blind eye to what was becoming obvious with the accumulation of reports, incidents, and complaints.

A close reading of Claiborne Hardware Company indicates that the decision could go either way, depending on how the facts unfold. However, the plaintiffs clearly will face an uphill battle, since it will be very difficult to convince even the most hostile court that the Catholic Church is now more accurately characterized by its "reptiles" — the abusive priests — than by the "countless freestanding trees," representing the many parishes and parishioners whose spiritual lives largely depend on the viability of the Church’s finances. This constitutional defense, like the charitable-limitation doctrine, was available to the Church during the first round of cases, but the Church chose to settle rather than to fight.

Given all this, a betting person would not put much money on the dioceses’ meekly forking out more gobs of money that would force them to close still more parishes. The institutional Church likely will take full advantage of legal doctrines that seek to protect the flock against the ravages of damage claims arising from the sometimes real — but sometimes fictitious — betrayals by some clergy. This second batch of plaintiffs would be well advised not to spend the money until the check clears.

Harvey A. Silverglate can be reached at has@harveysilverglate.com. Dan Poulson assisted with the research for this piece.

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Issue Date: December 10 - 16, 2004
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