Priest Abuse Lawsuit Barred
Court Leaves Door Ajar for Other Suits
By Ina Barton email@example.com and Tom Heinen
Journal Sentinel Online
July 13, 2005
A man who says he was sexually abused by a priest in the 1960s cannot pursue his case against the Archdiocese of Milwaukee, the state Supreme Court ruled Wednesday.
But the ruling indicated a willingness to reconsider two vitally important questions for others abused by priests: How soon after the abuse must victims sue? And does the Constitutional requirement for separation of church and state prevent such suits?
Many victims had hoped that the court would modify or overturn state Supreme Court decisions from the mid-1990s that addressed those issues and virtually closed the door on victims' ability to sue the archdiocese or other denominations' governing entities.
Both sides saw reasons to be encouraged by the decision.
Archbishop Timothy M. Dolan said Wednesday that it provided an occasion to look with deep regret at some past occurrences in the archdiocese and a teachable moment to let people know that the church "is here to serve, to listen, to respond."
"It's difficult for me to ever use terms like victory, or triumph, or win in any situation that regards this tragedy of sexual abuse of minors by clergy," Dolan said. "This is still an area of extreme tenderness. This is an area of deep pain. . . . I think we're making some progress. I think we're seeing some light. I think we're beginning to experience some renewal and some rising from a time of pain and dying, and I want to keep on that pastoral road.
Survivors of clergy abuse and their attorneys said that while they feel terrible for the plaintiff, the ruling gives them hope for the future.
"This is a victory for victims," said Peter Isely, Midwest director of the Survivors Network of those Abused by Priests. "This is the best decision to come out of a Wisconsin court in 15 years."
Brookfield lawyer Jim Smith, one of the plaintiff's attorneys, added: "It sounds like the court is inviting a case where a victim can prove the archdiocese . . . transferred a known sex abuser."
The case arose out of the alleged abuse of at least 10 children in the 1960s and 1970s by Father George Nuedling, who died in 1994. In 2002, the 10 sued the Archdiocese of Milwaukee, alleging negligence, breach of fiduciary duty and fraud.
Statute of limitations
In July 2003, the state Court of Appeals agreed with a lower court that the suit could not move forward because the statute of limitations had expired. The plaintiffs, who attended Milwaukee-area churches where Nuedling pastored some 40 years ago, claimed they were abused between the ages of 9 and 14. State law at the time required that they take legal action within two years of turning 21.
A new state law that took effect in 2004 allows survivors of child sexual abuse to file civil suits until their 35th birthdays. It also extends the statute of limitations for criminal charges until the victim turns 45. In addition, the law says that a church can be sued for failing to report child sexual abuse occurring after the law passed and for not preventing abuse when religious leaders know of a prior incident.
Of the original 10 plaintiffs, only one - identified as John Doe - appealed to the Supreme Court. The others have negotiated settlements. Doe was in his 50s when the suit was filed.
Doe's attorneys argued that he sued as soon as he discovered evidence that the archdiocese knew about Nuedling's pedophilia since the 1980s. But the justices ruled that his suit could not go forward because he did not present evidence that the archdiocese knew about the abuse while it was going on in the 1960s.
Without such evidence, the court could not even address the question of whether Doe could get around the statute of limitations, according to the majority opinion. For the same reason, the court also could not reconsider a 1995 ruling that, citing separation of church and state, makes it nearly impossible to sue the church for abusive priests' actions.
Bradley seeks answers
In a concurring opinion, Justice Ann Walsh Bradley said the two questions should have been answered. She wrote that Doe's claims should not be barred by the First Amendment because sexual abuse cases have nothing to do with "church canons, church policies or church practices." Instead, they involve whether the church as an employer did all it could to protect children from its employees, the priests.
"Employers, including religious employers, must be subject to such laws if our children are to be made safe," she wrote. " . . . This court should not allow church officials to be beyond reproach of the law. . . . I would hold that in the context of cases involving child sexual assault, the Establishment Clause does not bar plaintiffs from pursuing these secular actions."
Bradley went on to discuss the statute of limitations as it relates to Doe's claims. Because his claim that the archdiocese failed to properly supervise Nuedling is separate from any claim against Nuedling himself, he should have more time to file it, the concurring opinion says.
"As counsel for Doe explained at oral argument, the allegations in this case 'do not arise out of the moment of the sexual attack. They arise out of the secrecy of the Archdiocese, which we could only learn about as of 2002,' " Bradley writes.
She also notes that courts in both California and South Dakota have allowed similar claims against the Archdiocese of Milwaukee to proceed.
"While the passage of time may make his claims more difficult to prove, for the reasons stated above, he should not be barred from his opportunity to do so," Bradley writes.
Chief Justice Shirley S. Abrahamson agreed with Bradley that both key questions should be decided in the victims' favor. Justices Louis B. Butler and N. Patrick Crooks said the questions should be discussed further in a future case, and Justice Patience D. Roggensack said the church-state argument prohibiting suits should be thrown out, but was silent on the statute of limitations issue. Justice David T. Prosser wrote the majority opinion; Butler wrote a second concurring opinion.
Widera suit awaits
Those statements seem to clear the way for a suit filed against the archdiocese in February. It claims the archdiocese is guilty of fraud and negligence because officials did not inform parishioners about prior criminal conduct by a different priest, Father Siegfried Widera. The plaintiff in that case was an altar boy at St. Andrew's in Delavan when Widera molested him in the mid-1970s, the suit claims.
In that case, the plaintiffs cite internal archdiocese documents divulged as part of a lawsuit in California. The records show Widera abused another boy while on court-ordered probation in 1976, yet officials at the Archdiocese of Milwaukee didn't notify police.
Instead, church leaders persuaded the boy's mother to stay quiet and transferred the priest to California, the records show.
Had they spoken up, Widera - now dead - could have been sent to prison on a probation violation, rather than to two parishes in California, where he was accused of molesting numerous other children.
Jeff Anderson, a Minnesota-based attorney who represents both the John Doe in the case decided Wednesday and the former St. Andrew's altar boy, said his biggest concern is the time it will take the latter case and others like it to make their way through the courts.
Local SNAP leaders shared his concerns.
"We wanted it to be over, but it's not. We're thrown into overtime," Isely said.
The group's top priority now is to support legislation that would give adult survivors of childhood clergy abuse a window of opportunity in which to file suit, no matter how long ago the abuse happened, he said.
The Legislature rejected the inclusion of a one-year window in the 2004 sex abuse law. A spokesman for Gov. Jim Doyle has said that he supports the "window" concept.
State Sen. Tim Carpenter (D-Milwaukee) said Wednesday that he and Rep. David Cullen (D-Milwaukee) are preparing to introduce a bill that would provide a one-year or two-year window.
Carpenter, who said he was moved by 12 hours of "gut-wrenching testimony" by victims of clergy abuse at a hearing last year, wants the victims to be able to have their day in court.
They expect to introduce the bill by the end of this month or early in August, before the Legislature convenes in September, Carpenter said. It will be very similar to the one proposed last year.
"Its difficult for me to ever use terms like victory, or triumph, or win in any situation that regards this tragedy of sexual abuse of minors by clergy."
- Archbishop Timothy M. Dolan, leader of the Milwaukee Archdiocese
"It sounds like the court is inviting a case where a victim can prove the archdiocese ... transferred a known sex abuser."
- Jim Smith, a Brookfield attorney representingp the plaintiff
- Text of ruling: John Doe 67A v. Archdiocese of Milwaukee
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