Priest Abuse Lawsuit Erodes Religious Freedom, Vermont Diocese Claims
By Sam Hemingway
Burlington Free Press
February 4, 2012
The prospect of paying more big damage awards to victims of long-ago priest sexual abuse will put the state's Roman Catholic diocese out of business and violate constitutional protections regarding religious freedom, the diocese is claiming in papers on file at U.S. District Court in Burlington.
"The State cannot infringe on a protected freedom by imposing damages and penalties that the church cannot pay," the diocese said in a motion asking Judge William Sessions III to throw out a lawsuit filed in 2010 by a man alleging that as an altar boy he was molested in Rutland by the Rev. Edward Paquette in 1974.
"If the protections of the First Amendment are to mean anything, the government should not be allowed to shut the doors of a church and put it up for sale," church lawyers Kaveh Shahi and Tom McCormick wrote.
The First Amendment, perhaps the best known part of the Bill of Rights attached to the U.S. Constitution, reads in part that "Congress shall make no law respecting an establishment of religion." The line has been interpreted to mean government should not be involved in the conduct of religious entities.
The church's contention — and the admission that it could face closure if it's hit with more damage awards — represent a new line of defense for the state's Catholic diocese. Since 2002, the diocese has been named as a defendant in 46 lawsuits alleging sexual abuse of children by priests, mostly involving incidents in the 1970s.
"We researched this and nobody has acted on this theory before," McCormick said in an interview late last week. "We believe this legal battle is infringing on the rights of current believers to practice their religion."
The Vermont diocese reached what it thought was a final resolution of its priest sexual abuse cases in May of 2010 when it agreed to a $17.6 million "global settlement" involving 26 pending cases, a move that caused the diocese to sell its Burlington headquarters property for $10 million.
The 2010 settlement, however, did not close the book on priest sex abuse cases in Vermont. Since then, the church has been sued by other alleged victims nine more times. One case is in federal court and eight are awaiting trial at Chittenden Superior Court in Burlington. Seven of the cases involve claims of misconduct by Paquette.
erome O'Neill, the lead lawyer representing the alleged victims, scoffed at the tack taken by the diocese.
"It further illustrates that the diocese does not care about the survivors of abuse by priests," O'Neill said in an interview. "The church knows its argument is a completely baseless strategy which is nothing more than a design to drag out these cases as long as possible and make life as difficult as possible for the survivors."
In papers opposing the diocese's request to dismiss the case, O'Neill and co-counsel John Evers wrote that the church was wrongly trying to use the First Amendment to dodge responsibility for hiring and continuing to employ priests such as Paquette after knowing they had molested children.
"The First Amendment's religion clauses are not a refuge for criminal or tortious behavior that harms children," O'Neill and Evers wrote in their reply to the church's motion.
They also argued that, even if a large damage award is awarded, the diocese could follow the route of eight other dioceses and file for protection in bankruptcy court, where it could reorganize its finances.
"No diocese to date has been put out of business by this or any other lawsuit, child sex abuse or otherwise," they wrote.
Cheryl Hanna, a Vermont Law School professor and constitutional scholar, said the diocese will have an uphill battle trying to persuade Sessions to agree with its stance.
"I know of no jurisdiction that has recognized that argument," she said referring to the First Amendment's religious protection clause. "I think it's a very hard argument for the church to prevail on."
Hanna said the diocese's new tactic might have been motivated by a recent U.S. Supreme Court decision in a Michigan case that said churches have a "ministerial exception" to choose, and remove, their leaders without government interference. She said, however, that the ruling wouldn't apply to a priest abuse case.
"You can't use the cloak of the First Amendment to commit crimes or to shield yourself from the liability that would result from the crimes you committed," she said.
According to papers on file at federal court, the plaintiff in the federal lawsuit alleges Paquette fondled him two or three times in 1974 when the person was 12 years old. The Burlington Free Press does not publish the names of alleged victims of sexual abuse without their permission.
Paquette had been hired by the diocese two years earlier and was employed as an assistant priest at the Christ the King parish in Rutland. Prior to coming to Vermont, church records show, he had molested boys while a priest in Indiana and Massachusetts.
The Vermont diocese knew about those incidents, but hired him after being convinced his "homosexual" tendencies had been successfully treated, the documents show.
In October 1974, Paquette was reassigned to St. Augustine Church in Montpelier after the diocese received reports he had molested two young men while on communion calls at a Rutland hospital, according to church records.
In 1976, he was transferred again, this time to Christ the King Church in Burlington. In 1978, then-Bishop John Marshall suspended Paquette from the priesthood after a number of parents of altar boys at the Burlington parish complained that Paquette had fondled their sons.
The cases alleging child sexual abuse by Paquette began turning up in court in 2004. To date, 36 of the 46 priest sex abuse lawsuits filed against the diocese name Paquette as the offending priest. All claim the diocese is liable for damages because it was guilty of negligent supervision of Paquette.
The church has argued, in this case as it did in the earlier ones, that the molestation claim is moot because the alleged victim should have filed his claim within the six-year statute of limitations for bringing a lawsuit after turning 18 or realizing the effect of the abuse. That argument has been rejected by judges presiding over Vermont priest abuse cases.
Paquette, who is retired and lives modestly in Westfield, Mass., is not a named defendant in any of the cases, including the one in federal court. In an exclusive 2009 interview with the Burlington Free Press, he expressed remorse for his conduct.
"I'm very apologetic and I'm very sorry," he told the newspaper. "I get help from God to help me get through this. I feel sorry for the people and the families who have been hurt through this."
Three of the Paquette abuse cases ended up going to trial at Chittenden Superior Court in 2008 and 2009, resulting in damage awards for the victims totaling $14.5 million.
Those damage awards and other out-of-court settlements the church has issued have taken a toll on church finances, according to an affidavit from Martin Hoak, the diocese's financial officer.
"The scandal, coupled with eight years of litigation (and continued lawsuits), have adversely affected donations," Hoak's affidavit said. "The number of donors has declined ... Efforts to raise funds for charitable concerns of the diocese, including capital campaigns for the schools and other efforts, have been impaired. Prospective donors want their contributions to got to charity, not to lawsuits."
Hoak also said in his affidavit that the diocese thought the 2010 settlement of the 26 cases had "compensated all of the claimants." He said the diocese today is a "much smaller entity" working out of leased space with depleted financial reserves.
"The diocese cannot survive if it sustains another verdict of the size it experienced previously," Hoak wrote. "It would not be able to take an appeal to have the record reviewed."
O'Neill and Evers, the lawyers for the alleged victim in the federal lawsuit, said in their reply to the diocese's motion that, as part of the 2010 global settlement, the payout to the three victims who won damages via their trials in 2008 and 2009 was shrunk from $14.5 million to $4 million.
They also said the church's request to throw out the case on grounds was flawed because it presupposes what the outcome will be.
"The size of the plaintiff's verdict in this case, if there is to be one, is entirely unknown," O'Neill and Evers wrote. "The jury could find for the diocese on the statute of limitations issue; it could find a lack of causation between the injuries and the defendant's conduct; it could return a verdict that the diocese could easily pay."