Justices Open Door on Priest Abuse Cases

By Pat Schneider
The Capital Times [Wisconsin]
July 13, 2005

The Wisconsin Supreme Court today unanimously barred a claim of negligence against the Archdiocese of Milwaukee in a case of alleged priest sex abuse, but a majority of justices opened the door to revisit, in some future case, the past court decisions that abuse survivors say have closed the courthouse doors to them for a decade.

In a strongly worded concurrence, Justice Ann Walsh Bradley admonished the court majority for dodging the First Amendment and statute of limitation issues that have kept clergy sex abuse claims out of Wisconsin courts since a series of high court rulings in the mid-1990s.

"For the benefit of the lower courts and future litigants, I address the questions left unanswered by the majority," Bradley said in concurring opinion joined by Chief Justice Shirley Abrahamson and in part by Justice Patience Roggensack. Bradley argues that the court's past rulings do not bar negligence claims against the Catholic Church in allegations of priest sex abuse against children.

In a second concurrence, Justice Louis Butler, with Justice Patrick Crooks joining, said the court does not normally decide constitutional questions if the case can be resolved on other grounds. "These questions have not been resolved, and will have to be addressed in possible future litigation," Butler wrote.

In the case decided today, the court affirmed an appellate court's decision to dismiss a claim by John Doe 67, who said he was sexually abused in the early 1960s at age 13 by the Rev. George Nuedling, now deceased. The plaintiff said he did not realize the role of the church in protecting Nuedling until 2002, when the archdiocese divulged evidence of past sexual abuses by the priest.

While Doe claims that by 2002 at least a half-dozen men had reported claims of sexual abuse by Nuedling to the archdiocese, he never specifically alleged that the archdiocese knew about Nuedling's misconduct in the early 1960s, when Doe said he was abused, Justice David Prosser wrote in the majority opinion. "We therefore conclude that none of Doe's claims is properly pleaded ... we need not address the archdiocese's arguments rooted in the statue of limitations, public policy or the First Amendment."

In her concurring opinion, Bradley argues that the courts can evaluate whether the church took the necessary steps to prevent foreseeable harm to children, without entangling itself in church doctrine in violation of the First Amendment.

She distinguishes the Doe case, involving a claim of sexual contact with a child, from the Supreme Court's prior decisions, which involved claims of priest sexual misconduct with adult women. In those cases, "the harm at issue would have required consideration and interpretation of church doctrines, including the vow of celibacy," she said.

A claim of criminal sexual assault against a minor child, in contrast, does not require an examination of church doctrine.

"This court should not allow church officials to be beyond the reproach of the law," Bradley wrote.

In fact, immunizing church defendants risks putting religious institutions in a preferred position over secular institutions, "a concept both foreign and hostile to the First Amendment." Because Doe's claim is against the church, not Nuedling, the normal guidelines for statute of limitations do not apply, Bradley said.

Doe's allegations arise not out of the moment of sexual attack, but out of the secrecy of the archdiocese, she wrote.

Until the priest abuse scandals gained national attention, Bradley wrote, "most victims had no basis for believing that the institutional church was involved."

Wisconsin victims of child molestation by priests are in a strange situation, where courts in other states have allowed claims of child sexual abuse to proceed against the Archdiocese of Milwaukee while theirs cannot, Bradley said, noting cases in California and South Dakota.

"In the end, the majority wastes a golden opportunity today to provide much-needed guidance to this area of the law," Bradley wrote.