Suits against Santa Rosa Diocese Sidestep Statute of Limitations

By Paul Payne
Press Democrat
September 23, 2010

Four men who said they were molested by a Humboldt County priest in the 1980s hope to sidestep the statute of limitations with lawsuits focusing not on the acts themselves but on whether church officials knew the priest was a danger to children before he was posted there.

The suits against the Catholic Diocese of Santa Rosa rest in part on information contained in a recent investigative report commissioned by the Irish government that suggests then-Santa Rosa Bishop Mark Hurley was aware the Rev. Patrick J. McCabe had been deemed a pedophile before he hired him.

But the report, known as the Murphy Report, may not be the smoking gun the four men need. There is dispute over the significance of decades-old conversations between Hurley, who since has died, and Dublin Archbishop Dermot Ryan, who sent McCabe to California.

And all of the information in the report must be corroborated by witness statements and official church documents that either have been destroyed or are held closely by the diocese, which is expected to wage a pitched battle against their release.

"It won't be a slam dunk by any stretch of the imagination," said Ray Boucher, a Beverly Hills attorney who has handled hundreds of similar cases and won a settlement of more than $600 million from the Los Angeles archdiocese in 2007. "It's going to be tough. And it will be a bloody fight with these guys to get the documents."

The men, who sued in August and September in Sonoma County Superior Court, came forward after reading news accounts of McCabe's July arrest. The 74-year-old priest is being held in the Alameda County jail on charges he molested six boys in Ireland from 1973 to 1981. He is awaiting extradition.

The Irish report, completed last year, revealed the priest's troubled past. It said that after allegations of sexual misconduct surfaced in his native country, McCabe was sent in 1983 to a New Mexico clinic, which designated him a pedophile and prescribed drugs to curb his impulses.

Soon after, McCabe was appointed associate pastor at Eureka's St. Bernard parish and school, where the plaintiffs say he molested them in 1984 and 1985. At the time, they ranged in age from 9 to 17.

The lawyer in all four suits, Joseph George of Sacramento, said the men, now in their 30s and 40s, were outraged to learn from the report that church officials knew McCabe's background.

They broke their nearly 30-year silences to pursue the negligence and fraud claims, which have a three- and four-year statute of limitations from the time a person becomes aware of the loss, George said.

Claims of child sexual misconduct expire at a person's 26th birthday, George said.

"It's all about the bishop placing this known pedophile in a parish with a grammar school," George said. "It's simply unconscionable. That's what has upset the victims of sexual abuse by McCabe."

However, whether the Murphy Report pinpoints what was known by Hurley is an open question.

The 700-page report examined the cases of 46 priests in Ireland accused of sexual abuse between 1975 and 2004. Its release in 2009 prompted a letter by Pope Benedict XVI to Irish Catholics apologizing for the abuse, which he called "sinful and criminal."

A 61-page section refers to an unnamed priest, whose history precisely matches McCabe's, and Santa Rosa diocese officials have acknowledged that McCabe served here from 1983 to 1986.

The report says Dublin Archbishop Dermot Ryan "contacted Bishop Mark Hurley, of the diocese of Santa Rosa, California, who clearly was known to him. It appears that Archbishop Ryan asked him to, as it were, 'rid me of this troublesome priest,' and Bishop Hurley agreed. Presumably (name redacted) full history was made known to Bishop Hurley."

The Rev. Fergal McGuinness, associate pastor at Santa Rosa's Cathedral of St. Eugene, said the phrase "rid me of this troublesome priest" a reference to the 12th Century murder of Thomas Beckett, archbishop of Cantebury is a "typical Irish literary flourish."

The preceding phrase in the report, "as it were," also indicates those were not actually Ryan's words, he said.

McGuinness, a canon lawyer, said it is clear Ryan sent McCabe to New Mexico for treatment and "he pretty much didn't want him back" in Ireland.

But McGuinness said he doesn't know what Ryan told Hurley about McCabe.

"I'd be leaping to conclusions to draw any inference from" the report, he said.

However, the report's next paragraph says Msgr. John Wilson, who was Ryan's secretary in 1983, said he was in Ryan's study while the archbishop spoke with Hurley by phone.

"Monsignor Wilson's recollection was that Archbishop Ryan, explained to Bishop Hurley the personal difficulties that (name redacted) had been treated for and, to the best of his recollection, the nature of the treatment," the report says.

Ryan is dead and a telephone call to Wilson was not returned.

The report says McCabe returned to Ireland in May 1986 and three months later allegedly abused a 9-year-old boy.

The Santa Rosa Diocese likely will argue that the window for the lawsuits is now closed. A one-year experiment by the Legislature allowing victims to pursue civil lawsuits against the church and other organizations ended in 2003.

Adrienne Moran, an attorney for the diocese, said there is no evidence in official files that church officials knew about McCabe at the time. The diocese will be forthright in producing documents to all parties, she said.

Moran said she was still evaluating a defense that likely would include the argument the cases are too old. She called the fraud theory the "latest tactic" to get around the law.

"If a judge looks beyond the label to the substance of the cases and finds they are actions for recovery of damages for child sex abuse, then I believe the claims are barred by the statute of limitations," Moran said. "These claims expired long ago."

But some legal experts say George's approach is viable. Negligence claims are used across the country, although the fraud argument is more rare.

John Manly, a Newport Beach attorney who has represented clients in 500 cases against the church since 1997, said fraud requires a higher standard of proof than negligence but it carries the possibility of punitive damages.

He said victims often don't realize until adulthood that people who were in positions to protect them didn't.

"The allegation is the Diocese of Santa Rosa was a dumping ground," Manly said. "They took McCabe knowing who he was. Instead of telling people, they kept quiet. Sounds like fraud to me."

Jeff Anderson, a Minnesota lawyer who is suing the Vatican and has brought successful fraud cases in Nevada and Wisconsin, said there is a growing recognition by courts that church officials conspired to cover for bad priests.

He called the Murphy Report a "damning piece of evidence" that demonstrates deceit and deception for the benefit of the church hierarchy.

"They are making a representation by that collar that the priest is safe and trustworthy," Anderson said. "That's the legal equivalent of fraud."

Experts said the latest lawsuits will be won or lost in the early phases when the diocese files dismissal motions. If the suits survive challenges and get to the discovery phase at which point the diocese is forced to turn over internal documents the cases will settle, they said.

The average California case is worth about $1.3 million, Manly said.

The real payoff could be in publicizing the inner working of the diocese, said Timothy Lytton, a professor at Albany (N.Y.) Law School and author of the 2008 book, "Holding Bishops Accountable," about how lawsuits help the clergy confront sex abuse.

Lytton said some plaintiffs aren't interested in money and will require as part of a settlement that information be disclosed about what church officials knew and what actions they took to prevent misconduct, if any.

"Of course, the church is terrified of this," he said. "It really drives their desire to settle."

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