Judge Dismisses Several Counts in Bishop Thomas O'brien Sexual-abuse Case
By Jerod MacDonald-Evoy
August 25, 2017
|Bishop Thomas O'Brien (left), the former head of the Roman Catholic Diocese of Phoenix, and his attorney Tom Henze listen to Maricopa County Superior Court Judge Eddward Ballinger on July 7, 2003, during O'Brien's arraignment in a fatal hit-and-run.|
The judge overseeing a lawsuit accusing Bishop Emeritus Thomas O'Brien of sexual abuse has ordered that several counts focusing on the Roman Catholic Diocese of Phoenix be dropped.
The counts related to the former bishop's alleged sexual misconduct still stand.
Maricopa County Superior Court Judge David Udall dismissed counts of public nuisance, fraud, fiduciary fraud and negligent infliction of emotional distress, leaving eight of the original 14 counts.
The counts that were dropped alleged the church had financial and oversight responsibilities related to O'Brien's alleged actions.
In their motions to dismiss multiple allegations in the lawsuit, attorneys for the church contended that some of the accusations were too broad and sweeping. Declaring the Phoenix Diocese a public nuisance would be akin to "creating a new law," defense attorney John Kelly said in the church's response.
The lawsuit, filed in September 2016, accuses O'Brien, now 81, of sexually abusing the plaintiff from 1977 through 1982, when the plaintiff was a boy.
"The Court further finds there have been no precedents for a public nuisance claim under a sexual abuse claim ever recognized in the State of Arizona." Udall said in his ruling, dated Tuesday.
Udall also ruled that the church was not liable for the alleged actions of O'Brien.
"We appreciated the time the judge took to make his decision," Tim Hale, attorney for the plaintiff, told The Arizona Republic, "but we are disappointed our client no longer has the ability to address the institutional misconduct."
Hale said the plaintiff's attorneys plan, during the discovery phase of the case, to seek more information on what they see as institutional secrecy around sexual abuses. Discovery, in which each side can obtain evidence from the other party or parties, is expected to begin soon.
A case-scheduling meeting is planned for Sept. 7, and a timeline for discovery and depositions will be set then.
Allegations stem from repressed memories
The allegations remaining in the civil case arise from what court documents describe as repressed memories that resurfaced two years ago while an Arizona man was attending his son's baptism.
The abuse is alleged to have begun in 1977 when the plaintiff, identified in court documents as "Joseph W.," was in the second grade.
"The abuse often took place before or during church services attended by Joseph W. and his family," the lawsuit states, "and under the guise of Bishop O'Brien showing Joseph W. how to assist with some aspect of the ceremony."
In 2002, the Maricopa County Attorney's Office initiated a grand-jury investigation into sexual abuse by Catholic priests at the Phoenix Diocese. O'Brien was the bishop in charge of the diocese at the time.
By 2003, O'Brien admitted to sheltering at least 50 priests accused of sexual abuse, often shuffling them around to different parishes across the state.
At the time, an agreement reached between the diocese and then-County Attorney Rick Romley said "no credible evidence has been received that would establish Thomas J. O'Brien personally engaged in criminal sexual misconduct."
"However, the investigation developed evidence that Thomas J. O'Brien failed to protect the victims of criminal sexual misconduct of others associated with the Roman Catholic Diocese of Phoenix," the agreement said.
The current lawsuit was filed in Superior Court by attorney Carlo Mercaldo, working with Hale, who has represented victims of child sexual abuse in California.
The lawsuit was filed against the Roman Catholic Church of the Diocese of Phoenix and three Catholic churches in the diocese. St. Thomas Aquinas Catholic Church in Avondale and St. Vincent de Paul Catholic Church in Phoenix are still parties to the lawsuit. St. John Vianney Catholic Church in Goodyear was removed from the lawsuit.
The plaintiff attended St. Thomas Aquinas Catholic School and Parish and St. Vincent de Paul Catholic School and Parish, both in the Phoenix area, in second through fifth grades, the lawsuit said.
In one of the earliest incidents of abuse, Joseph W. alleges, O'Brien kissed him on the lips. At the time, O'Brien was vicar general in the diocese. He became bishop in 1981.
The lawsuit alleges the plaintiff was forced to perform oral sex on O'Brien and that O'Brien did the same to the boy while he was swinging a container of incense.
O'Brien is alleged to have repeated "I am not a sinner" after one of the encounters, and told Joseph W. to do penance, the lawsuit said. Joseph W. recalled grabbing a rosary and doing penance in the pews of a largely empty church.
According to the lawsuit, Joseph W. repressed those memories for nearly 38 years.
The resurfacing of the memories "rendered plaintiff of an unsound mind resulting in both the inability to manage his daily affairs, and to understand his legal rights and liabilities," the lawsuit said.
Hale has a history of litigating similar kinds of cases involving clergy abuse as well as alleged abuses by volunteers with the Boy Scouts of America.
"We're just getting started," Hale said.
Along with O'Brien, the lawsuit names 60 other priests, deacons and religious leaders who had been credibly accused, investigated or found guilty of sexual abuse and who worked for or visited church properties within the Phoenix Diocese.
Hale alleges the church did not identify all of these suspected abusers in "community notification statements" that were mandated by the agreement with the county attorney.
The bishop's troubled past
O'Brien largely has been out of the public eye for several years, but he is no stranger to controversy.
O'Brien's 2003 statement on the subject, released with the agreement with the county attorney, said, "I acknowledge that I allowed Roman Catholic priests under my supervision to work with minors after becoming aware of allegations of sexual misconduct."
The agreement stated that if any allegations of criminal sexual misconduct against O'Brien were to surface, the agreement would not give him immunity.
"If information is forthcoming of personal, direct involvement of Thomas J. O'Brien in any act of criminal sexual misconduct, then charges shall not be precluded," the agreement stated.
That agreement brought major changes within the church, including a victim-assistance panel, a victim-assistance fund and training on sexual-misconduct issues for all diocesan staff and volunteers.
Weeks after the agreement was signed, O'Brien again made headlines.
On June 14, 2003, Jim Reed was crossing the street near 19th and Glendale avenues in Phoenix when he was struck by a vehicle that left the scene. Reed later would die of his injuries.
A witness followed the vehicle involved in the hit-and-run, took down the license plate and reported it to police. The car belonged to O'Brien.
O'Brien did not contact police, even after a fellow priest informed him that detectives were looking for him and his vehicle. Two days after the hit-and-run, O'Brien made phone calls about replacing his damaged windshield before police confronted him.
Soon after he was arrested, O’Brien resigned as bishop.
O'Brien was found guilty of leaving the scene of a fatal accident and was sentenced to four years' probation and 1,000 hours of community service. He had to surrender his driver's license for five years.