Pope Wants Head-Of-State Immunity from Texas Suit

By Brenda Sapino Jeffreys
Texas Lawyer
September 9, 2005

Joseph Ratzinger, a defendant in a Texas suit filed before he was elected Pope Benedict XVI, wants to be dismissed from the litigation, arguing he has head-of-state immunity.

But lawyers for the three plaintiffs, who allege in the civil suit they were abused by a former seminary student in Houston, vow to challenge any suggestion of immunity issued by the U.S. Department of State in response to Ratzinger's request, a challenge that could put the immunity argument to a test.

"This is a case of first impression," says plaintiffs lawyer Tahira Kahn Merritt of Dallas.

"We shall see what the political arm of government does," says Daniel Shea, a solo practitioner in Houston who represents one of the plaintiffs in John Doe 1, et al. v The Archdiocese of Galveston-Houston, et al., which is pending before U.S. District Judge Lee Rosenthal in Houston.

"It's a legitimate political question," Shea says. "I would assume that they wouldn't make a decision on that without running it by the president of the United States."

According to a status report filed by Ratzinger on Aug. 23, the request remains under review before the State Department. Joanne Moore, a press officer for the State Department, says it does not comment on specific cases.

A lawyer for Ratzinger, Jeffrey S. Lena, a solo practitioner in Berkeley, Calif., says he cannot comment on the allegations in the suit or on the request for immunity. But in Ratzinger's Amended Motions to Dismiss, filed in May, the pope alleges he should be dismissed from the suit on several grounds, including his presumed immunity.

"Because Defendant is head of a recognized state, he is absolutely immune from the jurisdiction of the United States Courts," he says in the motion.

Ratzinger also says he should be dismissed from the suit on First Amendment grounds because the plaintiffs' claims would intrude on the internal working of the Roman Catholic Church and would require the court to interpret the meaning of religious documents and resolve issues of church governance.

Merritt, of Kahn Merritt & Allen, who represents two of the plaintiffs in the suit, says the judge should not grant Ratzinger's request for head-of-state immunity because the allegations against him relate to his actions while serving as head of the Congregation for the Doctrine of the Faith for the church.

"He was the policeman that set doctrinal laws, basically, "You are bad, this is your penance,' " Merritt says.

As alleged in the complaint, Ratzinger "designed and explicitly directed" a conspiracy to fraudulently conceal tortious conduct in connection with the alleged sexual abuse of the three plaintiffs. In the complaint, the plaintiffs cite a 2001 letter that then-Cardinal Ratzinger sent to all bishops, reminding them that all proceedings against clerics accused of improprieties with minors under age 18 should be sent to the tribunal of the Congregation for the Doctrine of the Faith.

"It's basically all part of the conspiracy and cover up to get these files into a secret forum," Merritt alleges.

Ratzinger denies the allegations in John Doe 1 and asks to be dismissed as a defendant. So have the other defendants in the suit -- the Archdiocese of Galveston-Houston; Joseph A. Fiorenza, the bishop in the diocese; and a priest, William Pickard, who is described in the Plaintiffs' Original Complaint as a "vocational director" for the seminarian, Juan Carlos Patino-Arango. Patino-Arango is not represented by counsel, according to the docket report in the suit.


In the original complaint in John Doe 1, the plaintiffs allege they were sexually abused in separate incidents in 1996 by Patino-Arango, a native of Colombia who was then a seminarian working at St. Francis de Sales Church in Houston. They allege in the complaint that after the parents of John Doe 1 reported to the archdiocese the alleged abuse on the part of Patino-Arango, he was moved to a "retreat house for abusive priests" in Houston, and later "secretly spirited" out of the country and sent back to Colombia.

Among other things, the plaintiffs bring breach of confidential relationship and conspiracy to breach a confidential relationship causes of action against all of the defendants, along with assault by offensive physical contact and conspiracy to commit sexual assault; intentional infliction of emotional distress and conspiracy to commit intentional infliction of emotional distress; fraud and fraudulent misrepresentation and conspiracy to commit fraud and fraudulent misrepresentation; and fraudulent concealment and conspiracy to fraudulently conceal.

They also bring sexual exploitation and conspiracy to commit sexual exploitation causes of action against all defendants except Ratzinger, and negligence and negligent misrepresentation involving risk of physical harm against all defendants except Patino-Arango.

They seek unspecified actual and punitive damages in the suit, which the plaintiffs originally filed in 2004 in state court in Houston. It was removed to federal court in 2005.

In the Defendants' Answer filed by the Texas defendants, they allege Patino-Arango was dismissed as a seminarian the day after the parents of one of the plaintiffs reported the alleged abuse, the diocese informed Children's Protective Services of the allegation and the diocese advised Patino-Arango that he could not leave the country while law enforcement investigated. The defendants also allege in the answer that three weeks after the initial report, in June 1996, police advised the diocese that Patino-Arango was "free to leave the country."

The diocese defendants allege in their answer that they had "no prior knowledge of any sexual misdeed by Patino and as soon as they learned of the allegation in this case, took swift, decisive action by dismissing him from seminary and all other activities in the Diocese."

Daniel Schick, a partner in Vinson & Elkins in Houston who represents all of the defendants except Ratzinger and Patino-Arango, says there was no conspiracy.

"The archdiocese did the right thing back in 1996 by reporting the allegation [from John Doe 1] to law enforcement, barring the perpetrator from any ministry and by reaching out at that time to the victim's family, and heard nothing more until the lawsuit was filed in 2004," Schick says.

Patino-Arango "was kept in Houston until law enforcement said that it was OK to allow him to return home to Colombia," Schick says.


Schick says head-of-state immunity should apply to Ratzinger.

"There's been a long tradition in international law prohibiting suits against heads of state, and we as a matter of comity extend that to foreign heads of state. He absolutely is recognized by international law," Schick says.

But Shea, who studied to become a priest but is not ordained, contends that Ratzinger's immunity as a head of state is not automatic.

Jordan Paust, a professor at the University of Houston Law Center who teaches international law, says head-of-state immunity is not dictated by treaty.

"It's sort of a common-law notion," says Paust.

Paust says that U.S. courts, despite the separation of powers, often do follow a suggestion of immunity from the U.S. Department of State, but don't always do so. And he notes that the State Department doesn't always act on the requests for a suggestion of immunity.

"Sometimes they remain silent. Sometimes they expressly say they don't have a dog in this fight and sometimes they will file a formal suggestion of immunity with the court," he says.

If the State Department does suggest immunity for Ratzinger on head-of-state grounds, Shea says he's prepared to challenge it on constitutional grounds. He contends that the head of the Roman Catholic Church should not receive that immunity.

"This is not a suggestion of immunity [request] filed on behalf of the prime minister of Canada or the guy down in Venezuela or Tony Blair or even Jacques Chirac because there, there are no First Amendment church-state considerations," Shea says.

A lawyer for Ratzinger, Van Gardner, a partner in Houston's Hennessy, Gardner & Barth, did not return a telephone message seeking comment before presstime, and Lena, another lawyer for Ratzinger in John Doe 1, declines comment on the immunity issue.

However, a lawyer who represents the Archdiocese of Dallas says it's his view that immunity would apply to Ratzinger. Randal Mathis, a partner in Mathis & Donheiser in Dallas, says, "The Vatican is a separate country for purposes of this and the pope is the bishop of Rome and it's a separate entity from a diocese in another part of the world and a separate entity not only in the sense of church law, but in the sense of the law of any given country."

He says arguing otherwise ignores the reality of how the Roman Catholic Church is organized.

"It's kind of like the equivalent of suing President Bush because of something the local police department did wrong," Mathis says.

Schick says it doesn't matter that Ratzinger was sued before he became pope.

But Merritt says Ratzinger isn't being sued for his actions as pope, but instead in his former role as head of the Congregation for the Doctrine of the Faith.