Supreme Court Confronts Abuse by Priests: Law Shift on Clergy Abuse?
High Court to Hear Oral Arguments

By Pat Schneider
The Capital Times [Wisconsin]
April 12, 2005

It is the consummate irony, says Peter Isely, Midwest coordinator for SNAP, Survivors Network of those Abused by Priests.

Documents from the Archdiocese of Milwaukee, purportedly detailing church officials' efforts to shield a convicted pedophile priest accused of re-offending while on court-ordered probation, were divulged in a lawsuit brought in California.

That's where church officials transferred Siegfried Widera after trying to "keep a lid on" the new assault "so no police record would be made."

"The archdiocese had to produce those documents in California, but Wisconsin victims of this man cannot go to court," Isely said.

The documents in fact were filed in court in February in a lawsuit against the archdiocese. But as Wisconsin law now stands, the plaintiff is unlikely to get his day in court.

Since the mid 1990s, civil lawsuits seeking damages against the Catholic Church on claims it did not adequately supervise priests who sexually abused parishioners have been quickly dismissed because of a series of Wisconsin Supreme Court decisions.

That could change soon.

The Supreme Court on Tuesday will hear oral arguments in a case that could end what Isely calls a legal "ghetto" in which Wisconsin victims of sexual abuse by clergy are denied access to the courts.

Observers are expected to pack the courtroom Tuesday at the Fond du Lac City-County Building, where the court will hear arguments in three cases as part of its Justice on Wheels program aimed at making its work more accessible to people across the state.

In John Doe 67 v. Archdiocese of Milwaukee, the clergy abuse case to be heard Tuesday, Doe alleges that priest George Nuedling sexually abused him between 1960 and 1962, when Doe was 13.

The archdiocese did nothing to protect him, although church officials knew or should have known what Nuedling was doing to him and others, Doe says in briefs filed with the Supreme Court.

A Milwaukee County judge dismissed the suit on the grounds that the claims were time-barred: More than 40 years had passed between the alleged abuse and the filing of the lawsuit.

Doe argued that the clock for the statute of limitations should start running only after he could have discovered the archdiocese's role in his injuries.

And that was not until 2002, Doe argued, when a torrent of accusations by victims and revelations by churches was unleashed throughout the country, including the Archdiocese of Milwaukee.

Until then, "most victims of clergy abuse had no basis for believing that the institutional church was involved at all," Doe argued in his briefs.

Changed landscape: The District 1 Court of Appeals in July upheld a trial court's dismissal of Doe's lawsuit, both citing and raising questions about the Supreme Court decisions that had shaped the law for clergy abuse claims in Wisconsin courts.

In a 1995 Milwaukee case and a 1997 Dane County case, the high court found that negligent supervision claims against a religious body were barred in Wisconsin by First Amendment prohibitions on state interference with religious groups.

In a 1997 Milwaukee County Case, the Supreme Court determined that the statute of limitations runs from the moment a plaintiff suffers an intentional assault, even if the victim was a child at the time. The only exception is in cases of incest.

Appellate Court Judge Ralph Adam Fine wrote of those rulings: "Although we may disagree with these sentiments and question whether they are consistent with First Amendment jurisprudence, they are binding on us."

Late last year, state Supreme Court justices agreed to hear the case.

The landscape around clergy sex abuse has changed drastically since the court's earlier decisions. For example, between January and April of 2002, the year Doe filed his lawsuit, 176 priests were removed from their positions in the United States and bishops resigned in the U.S., Poland and Ireland, as Doe points out in his brief.

That May, former Milwaukee Archbishop Rembert Weakland hastened his retirement amid allegations of hush money paid to a former student accusing him of sexual misconduct. Despite the Catholic Church's adoption of a zero-tolerance policy on sexual abuse, ramifications of the scandal continue.

A church survey released in February reported that more than 1,000 new allegations nationally of past priest sexual abuse of children were lodged in 2004.

"Doubt," a play about priest sex abuse, won the Pulitzer Prize last week.

Victim activists are charging that a muted response to the abuse scandal has tarnished the legacy of the late Pope John Paul II.

Wisconsin courts' shielding of religious groups is "like the last county in Mississippi trying to hang on" to Jim Crow laws discriminating against blacks, Isely said.

Supreme Court justices don't ordinarily acknowledge being swayed by societal developments outside the law.

But Marci A. Hamilton, a professor at Benjamin Cardozo School of Law, says the explosion of revelations about priest sex abuse shows that churches can't be relied upon to police themselves.

"We learned the hard way," said Hamilton, who will argue Doe's case to the court Tuesday.

Hamilton said the earlier cases "are so far out of line with U.S. Supreme Court jurisprudence that they need to be rethought."

U.S. Supreme Court justices refused to hear an appeal of the 1995 Wisconsin case exempting church personnel practices from court review, but last year that court, without comment, allowed the California lawsuit involving Widera to proceed against the Archdiocese of Milwaukee.

Donald Downs, a professor of political science and law at UW-Madison, said courts need to find a balance between religious freedom and a civil tort system to protect people who have been violated.

Some functions of a church may legitimately be held beyond the reach of the court. "There may be some aspect of evidence gathering that is not allowed in a lawsuit against a church," he said.

"You could argue that favoring religious over non-religious groups poses a constitutional issue," Downs said.

First Amendment?: John Rothstein of Quarles and Brady in Milwaukee, one of the attorneys representing the archdiocese, said the case should be decided on the statute of limitation issues on which the trial court ruled.

The Supreme Court "does not address First Amendment issues if a case can be decided on other grounds," Rothstein said.

The Court of Appeals, however, took on the constitutional issues of the case, even though the appellants themselves did not raise them.

And state Supreme Court justices have been arguing for a decade among themselves on whether constitutional issues are involved in the clergy sexual misconduct cases.

Shirley Abrahamson, now chief justice, joined a dissent in the 1995 case establishing immunity for churches, saying the majority erred in interjecting the First Amendment issues into the case.

Abrahamson joined Justice Ann Walsh Bradley in a dissent to a 1997 case that again criticized the majority for reaching the First Amendment issue.

Bradley in that decision asked: "Why should a diocesan decision to let a known pedophile work unsupervised with children enjoy ecclesiastical protection?... No secular entity enjoys such a broad immunity from tort liability."

Justice N. Patrick Crooks wrote the majority opinion in that case, saying "A bishop may determine that a wayward priest can be sufficiently reprimanded through counseling and prayer."

Justice John P. Wilcox joined the majority in the precedent-setting cases on church immunity and statute of limitations for sexual abuse.

Justices David Prosser, Patience Roggensack and Louis Butler joined the court after those decisions were made.

Forecasting what the court will do is always dangerous, Rothstein said. "One can never predict. You've got seven minds working on the case."