Archdiocese
concurrence
addresses First Amendment
By
Denise G. Callahan
Special to Wisconsin Law Journal
July
20, 2005
 |
| The
Wisconsin Supreme Court upheld the dismissal of a case against the Archdiocese
of Milwaukee. The case alleged negligent supervision of a priest during the early
1960s. |
The
Wisconsin Supreme Court has determined that a plaintiff cannot hold the Archdiocese
of Milwaukee accountable for the actions of one of its priests when there is no
claim that the Archdiocese was aware of his alleged misconduct.
The
Supreme Court's July 13 decision is likely to be remembered not for the majority
opinion, but for the concurrences, which spoke of the constitutional issues despite
the fact that the court decided the case had been properly dismissed.
In
a concurring opinion that read like a dissent, one justice, with two others joining,
responded to compelling questions regarding the Catholic Church's culpability
in priest sex abuse cases that the majority of the court decided not to address.
Justice
Ann Walsh Bradley chided the rest of her colleagues for taking the easy way out
of the case that ultimately went against the last remaining plaintiff, John Doe
67F — nine others reached settlements with the Archdiocese of Milwaukee before
the court of appeals rendered its affirming opinion to dismiss the suit last summer.
The
unanimous court decided on technical terms that the plaintiffs didn't properly
state a claim that warranted a lawsuit against the Church — in its capacity
as the now-deceased Fr. George Nuedling's employer. Having resolved that issue,
the court stopped short of examining the First Amendment and discovery rule questions
also posed in the pleadings.
"The
majority wastes a golden opportunity today to provide much needed guidance to
this area of law regarding the Establishment Clause and the discovery rule,"
Bradley wrote. "Because I believe that this court, in its law development
capacity, should have reached these issues and concluded that they do not bar
the plaintiff's claims, I respectfully concur."
Chief
Justice Shirley S. Abrahamson joined Bradley's entire concurrence and Justice
Patience Drake Roggensack joined her on her opinion of the First Amendment question,
but not on her essay regarding the discovery rule ban.
Justice
Louis B. Butler, Jr. also wrote a separate concurring opinion — joined by
Justice N. Patrick Crooks — noting that the court was basically following
the status quo on this case, but also noting that the court has not muted the
other matters.
"The
majority correctly concludes that Doe does not allege that the Archdiocese knew
that Nuedling had a problem as of 1960, and that such knowledge is essential to
all three causes of action Doe raised against the Archdiocese," he wrote.
"Because of that conclusion, we have explicitly declined to address the Archdiocese's
arguments rooted in the statue of limitations; public policy, or the First Amendment.
We do not normally decide constitutional questions if the case can be resolved
on other grounds (citations omitted). As such, these questions have not been resolved
and will have to be addressed in possible future litigation."
Case
Dismissed
The
upshot of the main ruling, written by Justice David T. Prosser Jr., was that the
trial court dismissal and the Court of Appeals' affirmation were proper because
the plaintiff did not allege that the Archdiocese knew Nuedling was molesting
the young man back in the early 1960s. Therefore, the plaintiff's accusations
against the Archdiocese for negligence, fiduciary fraud and breach of fiduciary
duty couldn't stand.
But
it's the somewhat unusual additions to the error-erasing epistle of the whole
court that have people talking. One of the plaintiff's attorneys, James S. Smith
of the Brookfield firm Steinhafel, Smith & Rowen SC, said while the decision
is unfortunate for his current client, the points addressed or rather unaddressed
could bode well for another client, whose case was just dismissed by Judge Michael
D. Guolee.
"This
decision doesn't rule on the merits at all," Smith said. "What is significant
is that there is no justice endorsing the court's prior First Amendment and statute
of limitations holdings from the Pritzlaff [v. Archdiocese of Milwaukee] and [John
BBB] Doe [v. Archdiocese of Milwaukee], the two '90s decisions," he said.
"You have five out of the seven justices joining the two concurring opinions,
and three justices endorsing the plaintiff’s First Amendment arguments and
two justices expressly joining our argument on the statute of limitations. There
is reason to be optimistic given Justice Butler's comment that these decisions
will be addressed in future litigation, I've never seen that before."
In
sum, Bradley found that alleged priest pedophiles and their patron church can't
run for cover under the Establishment Clause of the First Amendment.
"I
conclude these allegations emanating from alleged child sexual assault pose no
threat of excessive entanglement between government and religion," she wrote.
"The Establishment clause of the First Amendment is not a bar here because
secular, not religious standards are implicated. As the [L.L.N. v.] Clauder court
instructed: if conduct violates secular standards, this court will provide criminal
sanctions and civil remedies as appropriate."
Marquette
University Law School Professor Scott Idleman said Bradley ventured down a somewhat
slippery slope with her thoughts on the First Amendment.
"She
is not taking into account the nature of tort law and how it really is a judgment
about the reasonableness of the conduct," he said. "It may be an easy
case to talk about tort liability in a sexual assault thing, but if you are opening
up tort law you're also opening up everything. It's not just sexual assault or
negligent supervision or cases of sexual abuse; its negligent supervision for
everything; it's negligent hiring for everything. I don't think she's sensitive
enough of what that would mean to the relationship between the law and the government
and what it's saying about religious practices themselves."
He
also said you have to look at non-mainstream religions that might have practices
beyond the mainstream and what this could mean in that context. The framers of
the Constitution said religion was special and he said it needs to be treated
that way.
On
her second point, Bradley found that the lower courts erroneously relied on BBB
Doe v. Archdiocese when they found favor with the Archdiocese's argument that
Doe's claims are time barred by the statute of limitations, given subsequent court
rulings in Miller v. Wal-Mart stores which recognized the tort of negligent hiring,
retention and supervision; Doyle v. Engelke and Clauder where the tort focused
on employer negligence. Plus, given the court's ruling in Sawyer v. Midelfort,
she said it was silly to stop the plaintiff in the instant case.
"In
contrast to the Sawyer case, actual sexual abuse is alleged here," she wrote.
"It makes no sense to apply the discovery rule in cases involving false allegation
of sexual abuse, but to deny its benefit in cases involving allegations of actual
sexual abuse. Such a distinction would be without a principled difference."
The
Archdiocese's attorney, John A. Rothstein of Quarles & Brady, sees things
a bit differently. He noted that only the two justices agreed to Bradley's take
on the First Amendment and statute of limitations issues both and even they didn't
call for overruling Pritzlaff and the former Doe case. Thus he says this case,
although Bradley and her compatriots voiced some thoughts, shouldn't lead anyone
to believe key issues have been settled.
"On
the issues of the statute of limitations issues and public policy, five of the
seven all said it's in effect a clean slate, we're not deciding those issues,
that would have to be another day," he said. "I think it would be a
mistake for anybody, on either side to suggest that the Supreme Court justices
have made up their minds on those issues. That's exactly what they said they are
not doing."
Although
Smith was heartened by Bradley's discussion, he said he's not certain whether
his client will ask for a rehearing. But, he said he does plan to go back to Guolee
with this opinion in the hopes he will reconsider his dismissal in the Sigfried
Widera case.
Former
Wisconsin Supreme Court Justice and now law professor Justice Janine P. Geske
agreed with Rothstein that although Bradley and Abrahamson did give people a peek
into their perspective, no one should read more into the opinion than what's actually
there.
"You
have two justices who said they probably would have done something differently
and you can infer there is a good chance they may have reversed," she said.
But the other five haven't given you any hint on anything; they could be anywhere."
