Metropolitan News-Enterprise


Wednesday, March 4, 2009


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Ninth Circuit Allows Molestation Suit Against Vatican to Proceed




A man who claims he was molested by his parish priest in Portland, Ore. in the 1960s may sue the Holy See on a respondeat superior theory, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A three-judge panel, in a per curiam opinion, affirmed in part a district judge’s ruling that claims by the plaintiff, identified as John V. Doe, may be litigated under the “tortious act” exception to the Foreign Sovereign Immunities Act.

Doe claims he was 15 or 16 when Father Andrew Ronan abused him. Church authorities allegedly kept Ronan in the priesthood, moving him from Ireland to Chicago to Portland despite knowing that he was a pedophile. Ronan died in 1992.

The complaint alleges a church policy of retaining abusive priests, shifting them from one assignment to another.

Under FSIA, a foreign sovereign cannot be sued in the United States unless a statutory exception applies, and the Holy See sought to dismiss the complaint in its entirety on that basis. The plaintiff contended that two of the exceptions to immunity apply to the case as pled.

Foreign State

Doe cited the provision allowing suit for “money damages...against a foreign state for personal injury or death...occurring in the United States and caused by the tortious act” of a “foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment.” He also cited a section allowing suit “based upon a commercial activity carried on in the United States by the foreign state.”

The Holy See responded, in part, by noting an exclusion that makes the tortious act exception inapplicable to discretionary functions of the foreign state.

U.S. District Judge Michael Mosman of the District of Oregon ruled that the commercial activity exception did not apply, but that the tortious act exception did, except as to a claim for fraud.

 The Holy See took an interlocutory appeal, and Doe cross-appealed the dismissal of his fraud claim.

The Ninth Circuit majority, consisting of Senior Judge Ferdinand Fernandez and U.S. District Judge Otis Wallace II of the Central District of California, sitting by designation, concluded that the tortious act exception allows Doe to sue based on the alleged vicarious liability of the Vatican as Ronan’s employer.

Discretionary Function

The plaintiff cannot, however, sue for negligent retention and supervision or negligent failure to warn, the judges said, because those activities fall within the discretionary function exclusion.

The judges explained that in determining whether a tortious act has occurred, the court looks to substantive state law. In Oregon, they said, a tortfeasor acts within the role and scope of his employment if he commits an intentional tort during working hours, at the workplace, and the tort grew out of work-related conduct.

Doe, they said, pled the necessary facts by alleging that he “came to know Ronan as his priest, counselor and spiritual adviser,” and that Ronan used his ‘position of authority’ to “engage in harmful sexual contact upon” Doe in ‘several places including the monastery and surrounding areas in Portland, Oregon.” The Oregon Supreme Court, they noted, has allowed a church to sued in state court based on very similar allegations.

Commercial Activity

The majority declined to address the commercial-activity exception or to rule on  the cross-appeal for jurisdictional reasons, noting that the right to an interlocutory appeal on immunity issues is limited to denials of immunity, and that the district judge did not apply the commercial activity exception to deny immunity.

The commercial activity issue was not so inextricably intertwined with the other issues in the case to permit it to be decided under the “collateral order” doctrine, Fernandez and Wallace concluded.

Judge Marsha Berzon, dissenting in part, said the commercial activity issue was properly before the court, and should be decided in favor of the plaintiff.

Fernandez responded in a separate concurrence:

“As I see it, Doe’s claim that church functions are simply commercial transactions because parishioners do give donations to the church bespeaks the veriest cynicism about religion and a church’s position within religion. Could a church spread the word of God without some funds? Would that it could, but the need for support does not mean that the holy activity is commercial. Is the Mass the marketing of a form of edifying entertainment? Is hearing confessions and giving religious advice — an age-old function of churches — really no more than a commercial activity similar to psychological counseling? Is the sacrament of Holy Eucharist the marketing of bread and wine or is the sacrament of Extreme Unction the marketing of oil? I think not. Normal legal usage and common sense recoil from those possibilities.”

The case is Doe v. Holy See, 06-35563.


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