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	Diocese Moves to Dismiss Abuse Lawsuits on Constitutional Grounds By Father Bill Pomerleau Observer Downloaded February 17, 2003 SPRINGFIELD - Citing numerous precedents, including a 1995 case involving an Episcopal priest in western Massachusetts, the Diocese of Springfield has moved to dismiss lawsuits connected to Father Richard Lavigne on constitutional grounds. "There are literally hundreds of court cases about this issue," said diocesan attorney John Egan, explaining why the courts should have no jurisdiction over the ordination, assignment, and disciplining of priests. The diocese is named as a defendant or co-defendant in 14 civil lawsuits filed by alleged victims of Father Lavigne by Greenfield attorney John Stobierski. The suits variously claim that Bishop Joseph Maguire, Bishop Thomas Dupre and/or Father Robert Thrasher negligently supervised Father Lavigne during his years of active ministry. Stobierski has already sent "demand letters," or requests for specific monetary damages from the diocese, in two of the cases. However, the diocese and its insurers have so far not entered into settlement talks about the lawsuits, Egan told The Catholic Observer. Instead, the diocese is arguing the substance of Stobierski's cases, which is that the diocese and its leaders acted negligently with its priest personnel policies. In a case involving Shawn Dobbert of North Adams, the diocese has cited numerous state and federal cases which say that while the church's conduct can be subject to court scrutiny in many areas, the state cannot regulate the free exercise of religion by questioning or defining its theology and religious structure. "The bishop is entitled to act according to the dictates of his religion," Egan said, noting that diocesan attorneys have provided the court with affidavits about the relationships of clergy to their bishops under canon law. "A bishop cannot treat a priest like a secular employer does his employees. "A used car salesman doesn't enter into a lifetime commitment with his employer. His employer isn't under a religious obligation to give him a job," he said. "This is an argument about church autonomy," Egan added. The diocese has cited a 1995 decision by the state Supreme Judicial Court, Alberts v. Devine. In that case, the high court ruled that "it is clear that the assessment of an individual's qualifications to be a minister, and the appointment and retirement of ministers, are ecclesiastical matters entitled to constitutional protection against judicial or other State interference." The diocese also cited a 1995 ruling by Superior Court Judge John Moriarty, who dismissed cases against two Episcopal dioceses and their bishops. The plaintiffs tried to sue the church because it restored to ministry a priest who had committed adultery. One plaintiff, a woman who had an affair with the priest, argued that each of three bishops was negligent for "his failure to appropriately guide, treat and supervise" the priest "or initiate action to remove" him "from the priesthood." "The plaintiffs, in short, seek recovery for what has been termed 'clergy malpractice.' Insofar as I am aware, neither our legislature nor our appellate courts have ever recognized a cause of action for 'clerical malpractice' Indeed, such a case of action has been uniformly rejected by the states that have considered it," Judge Moriarty ruled. Stobierski told the Observer that he is not arguing a case for clergy malpractice. "What the Constitution does not protect is negligent conduct that results in harm to persons. These cases are about the negligent retention and hiring of Father Lavigne," he said. Stobierski has asked that the diocese's motion be heard by Superior Court Judge Constance Sweeney, who is hearing similar constitutional arguments raised by the Archdiocese of Boston in arguments about hundreds of clergy abuse lawsuits its faces. The Greenfield lawyer argued that having Judge Sweeney rule on the constitutional issue would "avoid duplication of effort and the potential for conflicting rulings." He has also asked that all Springfield cases be consolidated under one judge, preferably Sweeney. Judge Sweeney is expected to rule on the Boston motions within the next few weeks. But it is far from clear that Springfield's cases will be heard by the controversial jurist. Although hundreds of cases from several Massachusetts counties were placed under Judge Sweeney's jurisdiction last year, the consolidation only occurred when the Archdiocese of Boston and nearly all of the attorneys for victims suing it agreed to simplify court proceedings by placing them in one court. That is not the case in Springfield. Each case against the diocese is being heard within the local court where it was filed, Egan told the Observer.
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