Catholic clergy abuse lawsuit against Vatican can go ahead, judge rules

U.S. District Judge John G. Heyburn II ruled Jan.11 that U.S. bishops and priests are employees of the Vatican withinthe terms of the Federal Sovereign Immunity Act.

The act generally exempts other sovereign states from thejurisdiction of U.S. courts, but it allows U.S. courts to adjudicatelawsuits seeking monetary damages from a foreign country for personalinjury caused in the United States by an employee of that country"while acting within the scope of his office or employment."

The lawsuit, brought by Louisville attorney William McMurry onbehalf of three clients who claim they were abused by priests when theywere minors, is believed to be the first clergy sexual abuse suit thatnames the Holy See as the sole defendant.

McMurry described Heyburn's decision as "historic."

However, The Courier-Journal, Louisville daily newspaper, quotedattorney Jeffrey S. Lena of Berkeley, Calif., counsel for the Vatican,saying that calling U.S. bishops and priests Vatican employees is a"fairly weak linchpin" for the case.

"The Holy See is just not responsible for this, and that's the bottom line," he said.

The Vatican's spokesman, Jesuit Father Federico Lombardi, said Jan. 12 that he had no comment on the ruling.

Lena said the Vatican did not present evidence before theruling, which was a procedural ruling on a preliminary challenge inwhich the judge must treat the facts alleged in the complaint as ifthey were true.

The case is the second in which a federal judge has denied a motion to remove the Vatican as a defendant.

Last June a federal judge in Portland, Ore., ruled against aVatican motion to be dismissed as a defendant in a case in which areligious order priest was accused of child molestation in Portlandwhen he was assigned there after previously admitting he had abusedminors in Ireland and in Chicago. The Vatican has appealed that ruling.

In a number of other sex abuse cases around the country inrecent years the Holy See has succeeded in getting itself dismissed asa co-defendant.

In the Louisville case, Heyburn barred some of the bases forclaims against the Vatican but accepted the grounds of "negligentfailure to report (abuse), negligent failure to warn, breach offiduciary duty -- insofar as that breach involved failure to report andfailure to warn -- outrage and emotional distress, violations of thecustomary law of human rights, and claims under the doctrine ofrespondeat superior."

"Respondeat superior" is the legal doctrine under which anemployer may be responsible for actions of an employee acting withinthe scope of his or her office or employment.

Heyburn said a priest engaged in sexual abuse is not actingwithin the scope of his employment, but noted that the plaintiffs claimtheir superiors failed to address such misconduct properly and coveredit up. "If, as plaintiffs allege, these bishops, archbishops and otherclergy followed a written or unwritten policy established by the HolySee, they certainly acted within the scope of their office oremployment," he said.

Heyburn acknowledged that whether the Holy See qualifies as anemployer of U.S. clergy for the purposes of the case had not yet beenfully tested.

"The court is open to reconsidering its decision that theUnited States-based bishops, archbishops and other clergy of the RomanCatholic Church are employees of the Holy See for purposes of FSIA (theForeign Sovereign Immunity Act) if further contrary evidence emergesduring the litigation," he wrote.