Plaintiffs Strike Back at Bid to Dismiss Abuse Lawsuits
By Tom Mashberg
January 11, 2003
Lawyers for sexual abuse plaintiffs struck back yesterday at church efforts to have their lawsuits dismissed en masse, arguing the First Amendment in no way shields religious groups from bearing legal responsibility for harmful acts.
In motions to be argued before a Superior Court judge next Friday, attorneys for 300 alleged victims of clergy molestation said U.S. and Massachusetts high court precedents clearly allowed them to sue the Boston archdiocese and many of its current and former bishops, including Bernard Cardinal Law.
Those precedents, they said, establish that freedom to believe in a religious principle is absolute, but freedom to act based on religious beliefs is subject to regulation under civil and criminal statutes.
``The plaintiffs are not claiming they were harmed by the . . . defendants' religious beliefs,'' attorney Mitchell Garabedian writes in his 45-page argument, which features 55 attachments. ``The plaintiffs claim they were harmed by the . . . defendants' negligent conduct.''
In a separate brief that cites similar themes and precedents, attorneys for Greenberg Traurig, which represents 225 abuse claimants, decry efforts by the church to use a so-called First Amendment Doctrine of Church Autonomy to deprive Massachusetts civil courts of jurisdiction over lawsuits against priests and their supervisors.
``They've taken the Establishment Clause of the First Amendment and tried to stretch it like a rubber band,'' said attorney Jeffrey A. Newman, primary author of the Greenberg Traurig brief. ``The courts won't allow such an abuse because, like any other citizen or corporation, the church and its personnel must live up to the laws and standards of the community.''
Once the Catholic Church or its representatives act, Newman said, ``they stand in the same shoes as all of us - entitled to due process under the law, but not enjoying some higher privileged position.''
Two weeks ago, the archdiocese filed an extensive brief asserting that allowing the church and its supervisors to be sued for the actions of certain priests would interfere unconstitutionally with the ability of all religious groups to assign and reassign clergy members.
At the time of the filing, Bishop Richard G. Lennon, apostolic administrator of the archdiocese in the wake of Law's resignation, took pains to play down the significance of the ``omnibus'' brief.
He insisted the motion was filed solely to satisfy church insurers, who have demanded the archdiocese exhaust every legal avenue before agreeing to put forward some $90 million in insurance dollars for use settling cases.
But Newman and Garabedian said the church's motion required a comprehensive response because even if it fails before Superior Court Judge Constance M. Sweeney next week, it would likely be taken up on appeal to the Supreme Judicial Court and possibly to the U.S. Supreme Court.
Newman said he was chilled by the church brief because, taken to its logical extreme, ``it would permit them to reassign a priest jailed for molesting kids to a parish without any legal accountability for the consequences of such an action.''
Newman said the church and his firm were ``currently at an impasse'' in negotiations for a global settlement that would provide liability payouts to 450 women and men alleging abuse by archdiocese priests dating back 40 years.
His partner, Roderick MacLeish Jr., said that by contrast, he was ``enormously pleased'' with a $5.8 million settlement for 15 clients achieved in recent weeks with Boston College High School and the Jesuit Society of New England.
Fourteen of the victims, allegedly abused by the Rev. James F. Talbot of Weston, who is under indictment for sexual abuse, received between $75,000 and $1.5 million.
The 15th man is an alleged victim of the Rev. Francis McManus.
Both clerics were teachers at BC High in the 1970s and 1980s.
James P. Higgins, 47, of Easton, one of the Talbot plaintiffs, said he was ``happy with the way I was treated'' by BC High president William Kemeza and the Jesuits.
``But you always feel that if you'd only said something at the time,'' he said, ``this abuse might have been stopped much earlier.''
In Montreal, the Rev. Paul M. Desilets, a retired order priest facing abuse charges in Massachusetts, waived his right to an extradition hearing and was released pending final appeal. Desilets, 78, has 30 days to appeal or he will be delivered to Worcester County, where he is under indictment for molesting more than a dozen Bellingham altar boys in the 1980s.
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