Diocese out of Lawsuit over Abuse
Priests Accused. Judge Cites Issue of Religious Freedom. Appeal Is Likely

By Joe Lambe
Kansas City Star
October 14, 1994

Two persons who allege they were sexually abused by priests cannot sue the Catholic Church because that would infringe on freedom of religion, a Jackson County judge ruled Thursday. Jackson County Circuit Judge Gene R. Martin dismissed the Catholic Diocese of Kansas City-St. Joseph from the two lawsuits, and set the scene for a major appeals court clash on state-church issues.

Most lawyers say Missouri law is not clear on what legal theories - if any - can be used to sue churches when clergy sexually abuse children. "This will be a test case and a very important one," said Sylvester James, attorney for one plaintiff. "Under this ruling, you couldn't hold Satanists liable for a ritual that includes baby killing. "

But James P. Tierney, attorney for the diocese, said he believes Martin's ruling applies to these two cases, not to all churches in other situations.

"I think it follows Missouri law," he said. "It's a significant victory for the diocese. "

In one case, a Kansas City youth and his parents sued the diocese and Michael Brewer. They allege that Brewer, who has since left the church, molested the then 17-year-old in 1990 and the church did little to investigate.

Judge Martin also dismissed the diocese from the case filed by Nicholas Gray, who contends the Rev. Thomas J. Ward molested him for about 10 years, starting from when he went to speak to him as a confused 14-year-old boy.

Ward maintained his innocence and recently returned to work as pastor of Nativity of Mary Parish in Independence, after his flock voted 845-17 to support him.

In both cases the church contends it has no liability. It argued that it could not be sued because that would "foster excessive entanglement with religion. "

Martin's terse ruling states that the lawsuits would infringe on First Amendment rights.

The judge did not dismiss the civil lawsuits against Brewer and Ward personally - and those are to be scheduled for trial. But lawyers said there is little sense in suing people who have little money.

Robert Wells, Gray's attorney, said, "I would be surprised if this were not reversed, but I've been surprised by the law before. " "If it's OK because of religion to sexually abuse minors, is it OK to murder somebody? "

And what, Wells asked, about the millions of dollars juries have forced churches to pay nationwide in cases where officials covered up clergy sexual abuse? "If they know they can't be sued anymore, why worry about making any of this public? "

Tierney said Martin's ruling meshes with another in New York and with a federal court ruling in Kansas City. The federal court held that a church could not be subject to an employee discrimination action because of its special First Amendment standing.

An expert not involved in the cases, Kansas City lawyer Rebecca Randles, has written legal articles on the question and has two similar suits pending in St. Louis.

"A very odd ruling," she said of Martin's decision, "that grants them protection that's not granted to any person anywhere. "

States allow various legal theories to establish church liability in such cases, Randles said, and Missouri law has not carved one out.

"In Missouri," she said, "there have been no major hits on this that have gone all the way through trial. " A Missouri court ruled in 1987 that a church cannot be sued on grounds of clergy malpractice because of the First Amendment. That's because courts would have to study church doctrine and make judgments on clergy performance.

Randles said she favors the argument that churches are in a position of fiduciary duty. Like a lawyer, she said, they are in unique positions of trust and can be sued if they abuse that position - such as covering up sexual abuse by clergy. James, the lawyer for the youth's family, said Martin's ruling might have been "a backhanded favor. " It puts off a trial until state law takes more shape.

"We were going to wind up at the Court of Appeals anyway - now might be the best time. "


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