Court: Alleged Ky. Abuse Victims Can Sue Vatican

By Peter Smith
The Courier-Journal
November 25, 2008

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[See the text of the ruling.]

Three Kentucky natives can pursue a lawsuit against the Vatican alleging it covered up sexual abuse by priests — but only if those decisions were carried out on U.S. soil.

That was the ruling of a federal appeals court yesterday that upheld a similar ruling by U.S. District Judge John Heyburn II of Louisville in May 2007.

The U.S. Court of Appeals for the Sixth Circuit agreed with Heyburn that the Vatican — as a sovereign state recognized by the U.S. government — is largely protected from lawsuits.

But the court ruled that the Vatican could be sued over claims that bishops and others covered up sexual abuse as part of their role as Roman Catholic Church employees, as long as that cover-up occurred in the United States.

Attorney Jeffrey Lena, representing the Vatican, said he's "gratified by the court's work and that it has in our view significantly narrowed the prospects of the plaintiffs' claims."

He declined to say whether he'd appeal to the U.S. Supreme Court.

The three men are represented by Louisville attorney William McMurry, who sued the Vatican in 2004, a year after he negotiated a then-near-record $25.7 million settlement with the Archdiocese of Louisville.

McMurry has said the Vatican itself, and not just local dioceses, needs to account for sexual abuse by clergy.

The three plaintiffs — Michael Turner, James O'Bryan and Donald Poppe — have alleged they were abused as boys by priests in the Louisville archdiocese between the 1920s and 1970s.

They are seeking class-action status on behalf of all U.S. abuse victims, contending that the Vatican for generations has orchestrated a policy of covering up sexual abuse by its priests, ordering bishops not to report abusers to police or warn parishioners.

The Sixth Circuit Court of Appeals ruled that the plaintiffs could not challenge actions abroad taking place in Rome or elsewhere — including the creation of a 1962 Vatican document calling for strict secrecy in handling priests accused of sexual offenses.

"The actual promulgation of the 1962 policy … occurred abroad," said the appellate court decision.

But the Vatican can be sued over church officials who carried out the policy in the United States, the court said.

The appeals court denied McMurry's bid to sue the Vatican — the world's tiniest nation — in its capacity as a private international religious organization, rather than as a sovereign state.

The United States itself filed a supporting brief, arguing that U.S. recognition of the Vatican as a sovereign state needed to be respected and that, if the lawsuit was to proceed at all, it should only do so under one of the exceptions to the Foreign Sovereign Immunities Act.

McMurry was also denied in his efforts to sue under some of those exceptions — such as an exception covering foreign governments involved in commercial activities.

The appeals-court ruling is "careful and seems relatively comprehensive going through all the machinations" of the Foreign Sovereign Immunities Act, said Carl Tobias, a professor at the University of Richmond School of Law who regularly tracks Sixth Circuit cases. "It doesn't really tell you what might happen ultimately on the merits, but it leaves the case alive to proceed."

McMurry did not return phone messages as of early yesterday evening.

Unless either side appeals to the U.S. Supreme Court, the case now returns to the U.S. District Court for Western Kentucky for evidence gathering and other pretrial activities.

A nationwide survey by the John Jay College of Criminal Justice found that 10,667 people alleged abuse by 4,392 priests between 1950 and 2002.

More than 300 people sued the Archdiocese of Louisville and two local religious orders, alleging abuse by priests and other church workers.

In a related matter, Judge Heyburn last month denied McMurry's motion to take the deposition of Pope Benedict XVI, saying McMurry had not made a strong enough case that such a step was needed.

McMurry contended that the testimony was urgent because the aging pope is the only living witness to the establishment of the 1962 policy.

Reporter Peter Smith can be reached at (502) 582-4469.