John Doe vs. Holy See

The issue whether the Vatican can be made a party defendant in the Federal Court system is pending in Oregon. The trial court, i.e. U.S. District Court, sent the issue to the next one up the line, the 9th Circuit Court of Appeals, which said Yes. The next level is the U.S. Supreme Court, if an appeal is taken from this ruling. Otherwise, the trial resumes in the District Court.

http://news.opb.org/article/4433-court-finds-priests-can-be-seen-employees-vatican/

Court Finds Priests Can Be Seen As 'Employees' Of The Vatican

BY KRISTIAN FODEN-VENCIL

Portland, OR March 5, 2009 6:01 a.m.
Lawyers who've been suing churches over the sexual abuse of children, are buzzing with a new court ruling that the Vatican can be sued over the behavior of priests. Kristian Foden-Vencil reports.

Legally, the Vatican is a foreign country. And foreign countries cannot be sued under U.S. law -- except under extraordinary circumstances.

Attorney Jeff Anderson appears to have managed to convince the 9th Circuit Court of Appeals that some of those circumstances do indeed apply in this case of priest sexual abuse.

Jeff Anderson: "All evidentiary roads -- documentary, testimonial, everything leads to one place. Right to the top of the pyramid. And at the top of the pyramid is the sovereign state called the Vatican and I was convinced that that's where accountability had to be held for years."

Anderson and attorney Marci Hamilton argued three issues to the 9th Circuit.

The first: that the actions of one Catholic Order can be treated as a dictate to all orders from the Holy See – on that point, the attorneys lost.

The second issue they also lost: that the church can be seen as a commercial entity.

But the third issue: that a priest might reasonably be regarded as an employee of the Holy See, they won.

And that's important because if a priest is an employee, then lawyers can go after the employer when there's a problem.

So far, it's been local archdioceses that have had to shoulder the financial burden of all the sexual abuse lawsuits. If the Vatican is found liable, then it could face similar financial claims.

In the case, John Doe versus the Holy See, an abuse victim went after the Vatican for moving Father Andrew Ronan from one church to another following a string of sexual abuse complaints, many of which he admitted to before he died.

After postings in Ireland and Chicago, Father Ronan eventually ended up in Portland, where a man identified only as "John Doe" in the lawsuit, says he was repeatedly abused.

Attorney Marci Hamilton says the church should have handed Ronan over to police when it first learned about his behavior.

Marci Hamilton: "It chose not to go to secular authorities, not to get these individuals put into jail, but to keep the secrets. And by keeping the secrets it created a cycle of abuse. They certainly could have reduced dramatically the number of victims in the church."

Vatican attorney, Jeffrey Lena, wouldn't talk on tape about this case. But he says the employee analogy is "dubious at best."

It'll be the job of U.S. District Court Judge, Mike Mossman, to decide whether priests can be considered employees of the Vatican. The case now reverts back to his Portland court – that is unless the Holy See appeals.

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The 9th Circuit's opinion may be accessed at FindLaw: http://caselaw.lp.findlaw.com/data2/circs/9th/0635563p.pdf
Its Caption is:

Please note that I haven't read an appellate court opinion since the mid 1990s, have made no special research on either First Amendment Law or Sovereign Immunity, which appear to be the issues in this case. If you need assistance with legal verbiage, please ask attorneys in your community.

They'll be able to keep your heads clear, between the language and styles of appellate judges and media reporters, as well as public announcements made by lawyers on either side. This is a complex and difficult issue in the sexual abuse litigation involving persons associated with the Roman Catholic Church.  Emotions will try to rule all reasoning, legal, religious, civic, ecclesial.  

Also please note this is a three judge opinion, names at the bottom of the caption, and not the full bench of the 9th Circuit Court of Appeals. Memory tells me, without research, that there is another step in the appellate process prior to vaulting to the Supreme Court. That is asking the full court of the Circuit, sitting en banc, which I used to translate as "in a bunch." There are 27 Judges on that Bench, the largest Circuit Court in the Country, but I do not know how many it takes for en banc, or if an appeal can go directly to the US Supreme Court from a three judge opinion such as this one.

Wikipedia says the 9th Circuit has its own unique rules for en banc, just 15 randomly selected judges, rather than the full bench. That creates problems.

"In addition to concerns over its legal doctrine, critics of the Ninth Circuit claim there are several adverse consequences of its large size. Chief among these is the Ninth Circuit's unique rules concerning the composition of an 'En banc' court. In other circuits, en banc courts are composed of all active circuit judges, plus (depending on the rules of the particular court) any senior judges who took part in the original panel decision. By contrast, in the Ninth Circuit it is impractical for twenty-eight or more judges to take part in a single oral argument and deliberate on a decision en masse. The court thus provides for a "limited en banc" review of a randomly-selected 15 judge panel. This means that en banc reviews may not actually reflect the views of the majority of the court, and indeed may not include any of the three judges involved in the decision being reviewed in the first place. The result, according to detractors, is a high risk of intracircuit conflicts of law where different groupings of judges end up delivering contradictory opinions. This is said to cause uncertainty in the district courts and within the bar. However, en banc review is a relatively rare occurrence in all circuits and Ninth Circuit rules do provide for full en banc review in limited circumstances. [http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Ninth_Circuit]

As far as I know, this is the first appellate ruling granting jurisdiction over the Holy See, to allow a plaintiff the opportunity to try to prove that priests are employees of the Holy See and that the employer may be liable for acts of the employee.

Intuition tells me that, so far, this looks like a landmark case, or the beginning of one. For all the years since 2002, when the news first broke, I had an intuition that the status of the Holy See, as a Church, a Religion, a City-State, an institution, an organization of a few men with their own rules and regulations of order and proceedings, would be an issue in a civil court some day.  I think this is bigger than "Church and State" and that the so-called "doctrine of separation of Church and State" is a myth, or just a phrase in a letter  a Founding Father wrote to some Ministers. This one could well be the case to decide, ultimately, what is a Church in a State, and where is jurisdiction.

Simplicity keeps repeating to me: a Church is a Church. A State is a State. Neither is or can be the other. The Vatican, i.e. Papal Primacy, clinging to  long-term ownership of Papal Territories, and its court the Curia, try to be both Church and State and might wind up being neither. The Vatican as a City-State did not exist until the Lateran Treaty of 1928, in the resolution of the conflict between Italy and the Roman Catholic Church as to which owned what properties in that country.  Ever since, the Church has claimed all the diplomatic rights of a nation among nations, particularly sovereign immunity, ambassadors, foreign relations, as well as a Church proclaiming a Religion, whether separate from or closely linked to State.

I do not have an answer, just a feeling, an intuition, that the Church may be schizophrenic and doesn't have an answer either. Its relations with civil governments have changed with the times in history, particularly ever since Emperor Constantine made it the state religion of the Roman empire by the Edict of Milan, 313, CE.

My intuitions are as prejudiced as my opinions, naturally. Perhaps, if Rome could resolve its split personality, we might discover a Church is there after all. Question: does a State have the power to decide that issue? If not, who or what does?

The U.S. Supreme Court has five Catholic Justices out of the nine.

For sure, the Holy See, note please the designation is not "The Vatican," will -- and must -- avail itself of all legal procedures. I'm sure its lawyers know what they are doing. They are at a disadvantage, though, for among John Doe's counsel is the leading constitutional scholar in the country. FindLaw, the lawyer's vademecum says this about her:

Professor Marci A. Hamilton holds the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University, where she is the founding Director of the Intellectual Property Law Program. She has been a visiting scholar at Princeton Theological Seminary, the Center of Theological Inquiry, and Emory University School of Law.