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  Suit Seeking Priest Names Faces Battle
Legal Experts Cite Privacy, Church Privilege As Concerns

By Kevin Harter
Pioneer Press [Wisconsin]
August 21, 2006

http://www.twincities.com/mld/pioneerpress/15321950.htm

The Roman Catholic Church has spent hundreds of millions of dollars settling lawsuits in accusations of priest sex abuse across the country. But a Wisconsin family's suit filed last week doesn't seek money. They want names.

That just may pose a tougher fight, legal experts say.

The lawsuit seeking the names of priests accused of child molestation — filed by the family of a Hudson funeral home director believed slain by a priest suspected of such a crime — faces an uphill battle. Not only has the Catholic Church been reluctant to divulge the names, there is no precedent.

"This will be a classic battle. It will be fascinating. If successful, it will create new law," said Marci Hamilton, who teaches constitutional law at Yeshiva University's Cardozo Law School in New York City.

Filed two weeks ago in St. Croix County Circuit Court against the U.S. Conference of Catholic Bishops, the lawsuit asks for the names and whereabouts of 5,000 clergy the bishops say have been accused of child molestation.

Jeff Anderson, the St. Paul attorney representing Dan O'Connell's family in the suit, contends the names should be released as a matter of public safety.

Monsignor Frank Maniscalco, a spokesman for the conference, said the bishops have policies for — among others things — removal of abusive priests and requiring that allegations of abuse be reported to police.

But that doesn't matter if the public doesn't know who the alleged abusers are, Anderson maintains.

"They have failed to disclose the names," he said of the bishops. "What good does it do if you don't have the names?"

The lawsuit claims bishops "have established a policy of harboring and protecting suspected child molesting agents, thereby endangering numerous children throughout the United States."

It offers the Rev. Ryan Erickson, the Hudson priest, as its prime example of how the church fails to protect parishioners, especially children, from predatory clerics.

Erickson, who is believed to have fatally shot O'Connell and mortuary intern James Ellison in 2002, had a long record of alcohol and sexual abuse before, during and after he entered the seminary. After being questioned about the slayings, Erickson committed suicide.

If successful, the lawsuit would be a dramatic new chapter in the long-running Catholic Church sex abuse story.

CAN THE SUIT SUCCEED?

Legal experts so far only agree that the suit raises a complex mix of issues, including privacy and church privilege, and that it will result in a long, difficult court battle.

Some give it poor odds because, they say, it takes such broad aim — each of the 194 bishops who make up the conference must be served with the lawsuit.

"I think it's wild," said the Rev. Robert F. Drinan of Georgetown University Law Center. "A lawsuit should be A sues B over a definitive allegation."

"Normally, you have to show immediate and irreparable harm for an injunction," said Francis Conte, a University of Dayton professor of constitutional law. "It (the lawsuit) asserts the conference has a duty to reveal the information, but I'm not sure what that duty is based on. From what I see, it is a fairly diffuse claim."

Leon Friedman, a professor of constitutional law at Hofstra University, agreed.

"It will be very difficult for them to get any information at all from the church on a legal basis," he said.

But the Rev. Thomas Doyle, an expert in church law and a supporter of the O'Connell family, said the suit just might fly — and set precedent.

"This lawsuit is unique. It is all for the welfare of others, not money," said Doyle, a Virginia-based Dominican priest and canon lawyer. "The bishops say this problem is behind us, that it was resolved in 2002. That is nonsense. The problem is not behind us."

Hamilton, the Yeshiva University professor, puts the suit in the context of the times. Since the sexual abuse crisis erupted in 2002, hundreds of civil lawsuits alleging abuse have been filed against the Catholic Church, the vast majority seeking monetary damages.

In the decades before 2002, the lawsuit wouldn't have had a chance, Hamilton said. But today, society and, more important, the courts are taking a harder look at legal issues relating to the church, including its finances and issues of privilege.

In the past, the church has maintained the lawsuits seek to bankrupt it. And in personnel issues involving allegations against clergy, it has argued privilege, Hamilton said.

"This is innovative in that it is against the American church hierarchy, not just an archdiocese, and it is unusual as one of only two asking solely for information and not damages."

The only other precedent was an injunctive action filed against the Chicago Archdiocese in the last year asking for the names of child abusers not yet revealed by the archdiocese.

Kevin Harter can be reached at kharter@pioneerpress.com or 1-800-950-9089, ext. 2149.

 
 

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