News & Newsletter

Constitutional Immunity of Clerics
by by Thomas R. Murphy, Esquire
Smith & Duggan LLP
Boston, Massachusetts

The past few months have seen no small amount of publicity of sexual abuse by the clergy of the Roman Catholic Archdiocese of Boston, a Corporation Sole ("Petitioner"). That publicity was the result of an unsuccessful petition to the Appeals Court to assert constitutional protection from liability and disclosure of Church documents. This article addresses the facts of that case and the law as applied to it.

The plaintiffs variously alleged that they had been abused by (the former) Father John J. Geoghan. They claimed, essentially, that the Petitioners knew or should have known of Geoghan's behavior, but failed to take reasonable steps to prevent him from injuring them. The Petitioners had moved to dismiss the complaints on the grounds that, as members of the Roman Catholic Archdiocese of Boston, they were immune from civil liability for such failure under the First Amendment to the United States Constitution and Article II of the Massachusetts Declaration of Rights. In a thoughtful opinion the trial court, McHugh, J., denied that motion./p>

The Petitioners also moved for a protective order, in essence claiming that all discovery materials should be kept from public access. As part of an effort to manage an extremely complex discovery situation, Judge McHugh entered a Confidentiality Order on September 8, 2000. On August 15, 2001 the Globe Newspaper Co. moved to intervene and gain access to information about the cases in which, it claimed, there was significant public interest. After briefing and argument, the trial court, Sweeney, J. entered an Omnibus Discovery Order. It permitted the confidentiality of truly sensitive personal information on a case-by-case basis and vacated the blanket, generic designation under Judge McHugh's Order. The Petitioners then sought relief in the Appeals Court from what was, essentially, a discovery order.

They based their argument for the absolute confidentiality of discovery materials on the proposition that their acts or omissions were subject to their Church Canon law, not our common civil law, and was, therefore, constitutionally protected. They then asserted that the original Discovery Order was necessary to prevent the "chilling effect of the discovery process upon their continued vocations in the Roman Catholic Church." There were several flaws in these arguments.

First, the Superior Court had denied the Petitioners motion to dismiss, ruling that the Constitution did not entitle them to pre-discovery dismissal based on their Constitutional defense. That decision was not before the Appeals Court. Second, even if the Petitioners' Constitutional argument had merit (which, as shown below, it did not) the Omnibus Discovery Order did not impose any liability upon the Petitioners. That Order merely permitted public access to most (but not all) discovery materials. Third, the claim for damages did not merit the relief sought.

A. Constitutional Defense

The law of the Commonwealth did not support the Petitioner's claim for Constitutional protection, either procedurally or substantively. While there is law from foreign jurisdictions, as well as local dicta, to support the notion that the First Amendment precludes civil courts from interfering with Church doctrine, such was not the case here.

The Petitioners relied on Alberts v. Devine, 395 Mass. 59 (1985), a case that was diametrically opposed to their position, in both the pre-trial procedure and the substantive defense. That was a case in which a Methodist minister brought mal-practice claims against a psychiatrist for disclosing confidential information to the plaintiff's supervisors. They had sought the information from the doctor, in accordance with Church doctrine, and were named defendants as well. In answering certified questions to this Court Alberts created a cause of action1 and addressed the two issues presented in the Petitioners' request for relief. Namely, whether discovery not unlike the documents in the Geoghan case should be protected and whether the First Amendment immunized the co-defendants from liability.

The cleric-defendants had sought a protective order similar to that of the Petitioners, they had moved to quash subpoenas and to preclude trial evidence. The lower Court allowed the motion and then reported four questions to the Appeals Court. The first two dealt with the physician's liability. The other two were "(3) [w]hether the action of the [cleric-defendants were] within the ambit of the privileges and immunities granted by the First and Fourteenth Amendments of the United States Constitution" and "(4) [W]hether [the judge] properly invoked the First Amendment in entering the protective order for [the cleric-defendants]." Id. at 63. The court answered the procedural question, number 4, by flatly stating "no" because there was no excessive entanglement between government and religion. Id. at 75. As to the substance of the claims, the Alberts court was of no more help to the Petitioners.

While Alberts does, at first blush, appear to support the defense, it only "begin[s] with the recognition that the First Amendment prohibits civil courts from intervening in disputes concerning religious doctrine." That is by no means the end of the matter. Alberts goes on, after a Talmudic analysis of this issue, to refute the Petitioner¹s argument completely. It said that even if the First Amendment were the shield that the Petitioners claimed, it "did not follow that the religion clauses preclude[d] the imposition of liability" on the clerics. Id. at 73. More to the point, "[a]lthough the freedom to believe 'is absolute,' the freedom to act 'cannot be.'" Id. "Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection." Cantwell v. Connecticut, 310 U.S. 396, 303-304 (1940). See also, Attorney General v. Bailey, 386 Mass. 367, 375 (1982).

B. The Petitioners' Internal Records Acknowledged The Comman Law Authority

The Petitioners had produced a number of records in the Geoghan cases. Among them, the January 1993 statement of one of the Petitioners, Cardinal Law. With it was the Archdiocesan policy on Clergy Sexual Misconduct. Both were replete with references to secular duties and civil responsibilities.

The statement referred to the policy having "been already in place," and its "attempt to respect both the nature of the Church and the legal requirements of society." In it the Cardinal pledged to report "incidents to civil authorities in accordance with the law." He acknowledged the harm "when this public and pastoral trust is betrayed" and stated that the Church "willingly assumed its public responsibility to address this evil wherever it surfaces." The Introduction of the policy stated that the Archdiocesan response to complaints would include "full respect of the civil and canonical rights of the accused while seeking to assist him." Logic dictates that when the Petitioner acknowledges his secular responsibilities and trust, as well as his duty to protect the public, he cannot later claim that his acts or omissions are constitutionally protected, and therefore beyond reproach. That would elevate him above the law and the "appropriate definition to preserve the enforcement" of the law. Cantwell, supra, at 304. On some level we all answer to a higher authority, but for the here-and-now the civil law must be common to all of us.

Concededly, the interpretation of policy and other internal procedures are matters for the Church. Wheeler v. Roman Catholic Archdiocese of Boston, 378 Mass. 58 (1979) (construction of rules and regulations for internal governance of religious group constitutionally protected). See also, The Parish of the Advent v. The Protestant Episcopal Diocese of Massachusetts, 426 Mass. 268 (1997) (First Amendment precluded jurisdiction over internal Church schism). Secular Courts may not exercise jurisdiction over Church property disputes. The Primate and Bishops' Synod of the Russian Orthodox Church Outside Russia v. The Russian Orthodox Church of the Holy Resurrection, Inc., 418 Mass. 1001 (1994) and Fortin v. Roman Catholic Bishop of Worcester, 416 Mass. 781 (1994). The issues in the Geoghan case, however, didn't arise out of church doctrine. They involved common law principles of agency and negligent supervision, not a question of Church doctrine.

C. Damages

The Petitioners also claimed that the disclosure of any discovery information would have put a ³chill² on their continued vocation in the Church. Although this vague allusion was the logical cornerstone of the Petitioners' argument on appeal, they provided no supporting evidence or explanation. It was not at all self-evident how the disclosure of the extent of the Petitioners' awareness of Geoghan's conduct, or the manner in which they exercised their supervisory responsibilities, would have a "chilling effect" on their "continued vocation."

The use of the term "chilling effect" suggests an argument that disclosure would disincline the Petitioners from performing their supervisory responsibilities in the future, or from remaining in the priesthood. Neither of those outcomes, however, was particularly plausible. If anything, it seemed likely that an awareness of such potential disclosure would have a positive effect upon the Petitioners' exercise of their supervisory responsibilities in future cases. That is, it might make them more vigilant.

III. Conclusion

As those of us who read the Boston Globe know, the Appeals Court denied the Petition and the rest, as they say, is history. The legal lesson, however, is that each of us must be held to the same standard; by what Holmes called the Common Law.

Endnotes

1. Not germane to the Geoghan cases, Alberts created a cause of action against anyone who, without consent and with the state of mind required, induces a physician to breach the doctor-patient privilege and proximately causes injury.