Pope-bishop relationship key in sex abuse defense

[May 18, 2010]  VATICAN CITY (AP) -- The pope appoints bishops, issues rules bishops are supposed to follow and accepts their resignations. Bishops take a vow of obedience to the pontiff and can't switch jobs without his approval.

But is the pope their boss? Are bishops Vatican employees or officials?

Those questions are very much at the heart of lawsuits in the United States seeking to hold the Holy See liable for the failure of bishops to stop priests from raping and molesting children. The Vatican filed a motion to dismiss one such suit in Kentucky on Monday, arguing in part that bishops aren't Vatican employees and that Rome therefore can't be held liable for their actions.

The case is significant because it represents the farthest any case has gotten in a U.S. court trying to place blame for the clerical abuse scandal on Rome, not just the priests who abused children and the bishops who failed to turn them into police.

The lawyer for the victims in Kentucky, William McMurry, says he doesn't have to prove bishops are employees of the Vatican to hold them liable but merely demonstrate they are Vatican "officials."

"Anybody walking around knows that a bishop is an official of the Holy See," McMurry said.

McMurry filed the lawsuit in U.S. District Court in Louisville, Kentucky, in 2004 on behalf of three men who said they were abused by priests as children. They allege the Vatican orchestrated a decades-long cover up of priests sexually abusing children throughout the U.S.

McMurry is seeking class-action status, saying there are thousands of victims nationally. The lawyer, who represented 243 sex abuse victims who settled with the Archdiocese of Louisville in 2003 for $25.3 million, is seeking unspecified damages from the Vatican.

Usually foreign countries are immune from civil actions in U.S. courts, but there are exceptions to the Foreign Sovereign Immunity Act which courts have said were applicable in this case.

The statute says that plaintiffs can establish subject matter jurisdiction over a foreign sovereign, if a crime was committed in the United States by any official or employee of the foreign state and that the crimes were committed within the scope of employment.

Nicholas Cafardi, a canon lawyer and former dean at the Duquesne University School of Law who consulted with the Vatican on the upcoming filing, said bishops were neither employees nor officials of the Holy See.

Being an official, he said, means you act on behalf of an organization. "American bishops do not act on behalf of the Holy See." Bishops are even less employees of the pope, since employment requires some level of day-to-day control that doesn't exist.

"That's a complete rewriting of Catholic theology," he said. "Under Catholic theology a bishop is just as much a member of the college of bishops, is just as much a successor of the apostles as is the Bishop of Rome" -- the pope.

But Marci Hamilton, a law professor who is co-counsel for the plaintiffs in two other sex abuse cases that have targeted the Holy See, said the Vatican very much exercised the day-to-day control necessary to prove bishops were Vatican employees when it came to clerical sex abuse.

Rome directed how bishops were to handle such cases and bishops couldn't take action to laicize an abuser without Rome's consent, she said. Nowhere did the Vatican tell bishops to report abuse to police or provide for protection for children, she said.

"He's an employee for the purposes of child sex abuse because he's under day-to-day control, which is the benchmark on this issue, and is never allowed to act independently on that issue," she said.

Hamilton cited recently revealed documentation in the case of a Milwaukee priest, the Rev. Lawrence Murphy, who allegedly abused up to 200 deaf boys from 1950 to 1974. The files are the basis for the latest lawsuit targeting the Holy See.

Correspondence between the diocese and Rome shows how the bishop tried to bring a canonical trial against Murphy, wrote letters to then-Cardinal Joseph Ratzinger, now the pope, seeking guidance on how to proceed but was eventually told to stop the trial by Ratzinger's deputy after Murphy said he was old and ill and just wanted to die a priest.

The bishop, she said, "was literally an agent or an employee of their (Rome's) decision making."

The Vatican argued in its motion that bishops in no way satisfied any of the 14 points of a common law employment test which courts can use to determine whether employers are liable for the actions of their employees: The Vatican doesn't pay the bishops salary or benefits, bishops don't work on its behalf or on property owned or operated by it, it said.

Jeffrey Lena, the Vatican's attorney, urged the court to use common law employment factors -- not Kentucky state law. Hamilton said that was problematic since the Foreign Sovereign Immunity Act incorporates relevant state law.

The motion also suggested that the court avoid using the religious nature of the relationship between bishops and the pope as a basis for civil liability because it entangles the court in an analysis of religious doctrine that U.S. courts generally avoid.

Edward Peters, the Vatican's expert witness and a canon lawyer at Sacred Heart Major Seminary in Detroit, said in a declaration that debates over the relationship between bishops and the pope had led to disputes as profound as to result in the Great Schism of 1054.

"Explaining the relationship between the pope and the bishops is extraordinarily complicated for even the best theologians, canonists and historians," he said. "To my knowledge, no civil or canonical court has ever previously attempted to resolve this issue."

McMurry, the plaintiffs defendant, stressed in his lawsuit the actual actions the Holy See takes on the ground: The Vatican creates, divides and realigns archdioceses; creates, appoints and assigns bishops; and promulgates laws and regulations for bishops to follow.

McMurry repeated those criteria in a 2008 petition to the U.S. 6th Circuit Court of Appeals, urging it to modify its decision to say bishops were Holy See "officials" as well as "employees" as the district court had held. In parts of the decision, the appeals court refers only to "employees."

The court denied his petition. But McMurry claims the issue before the district court remains whether bishops are officials. Lena didn't address the matter at length in his filing, noting that under the Holy See's own law a diocesan bishop is not an "official" and that the issue in U.S. courts is governed by the law of the sovereign.

[Associated Press; By NICOLE WINFIELD]

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