Court: Church leaders can be sued

Portland Press Herald/May 4, 2005
By Gregory D. Kesich

A legal barrier that protected church leaders from lawsuits arising from their failure to supervise clergy was breached Tuesday when the Maine Supreme Judicial Court ruled that a sex-abuse victim can sue the Roman Catholic bishop of Portland.

In the 5-2 decision, justices said Michael Fortin's case against the church could go forward without violating the religious protections guaranteed in the U.S. and Maine constitutions.

The court ruled that Fortin, a former altar boy and parochial school student at St. Mary's in Augusta, can make a legal claim against the Catholic Church and not just the priest who he says abused him beginning in 1985, when Fortin was 13.

Fortin contends the Rev. Raymond Melville's superiors knew that the priest posed a risk but failed to protect his parishioners.

During a brief news conference in Augusta with his attorney, Fortin said he was pleased with the ruling. He said the objective of his lawsuit "has always been about accountability, and we are moving closer toward that."

The suit will be the first in Maine since 1997 that attempts to hold church hierarchy responsible for failing to supervise a clergy member. That was the year when the court declared in Swanson v. The Roman Catholic Bishop of Portland that the relationship between a bishop and priest is out-of-bounds for any kind of judicial review.

The Swanson case did not involve sexual abuse, but the ruling had the effect of stopping suits that held church hierarchy responsible for the actions of clergy, including sex-abuse cases. The latest opinion does not overturn the the Swanson ruling but limits its reach enough to allow a case to go forward when the victim is a child.

Writing for the majority, Justice Jon Levy found that church leaders had a "special relationship" with Fortin because his age and involvement in church activities created a duty to protect him. Levy also wrote that the compelling public interest in protecting children from sexual abuse allowed the government to get involved in clergy supervision.

"An established and close connection between a child and an organization, whether religious, academic or otherwise, is a reasonable basis, informed by both common sense and common experience, to impose a duty on the organization to prevent harm to the child," Levy wrote. "Such a relationship gives rise to a duty to protect on the part of the diocese if the diocese has reason to believe that a priest such as Melville poses a substantial risk of harm to a child in Fortin's circumstances."

The decision means the Fortin case against the church will return to Kennebec County Superior Court, where it was dismissed in 2002 before the sides had a full opportunity to research the facts. Fortin's lawyer said Tuesday that even though the case is at an early stage, his client feels like a winner.

"To Michael, it's a victory, because this is what he's been after," said Sumner Lipman of Augusta. "We're going back to Superior Court, and if we are unable to resolve this through a settlement, we are prepared to go to trial."

Fortin turned down a settlement offer from the church in 2003, deciding instead to take his case to the state Supreme Court. Since then, Fortin has received a $500,000 judgment against Melville, who was found liable for abusing Fortin in a separate case.

Gerald Petrucelli, the church's lawyer, did not want to discuss the impact of the ruling.

"All this does is send the case back to the Superior Court. It would be imprudent of me to say too much about it before it happens," he said.

The impact of the case is unclear. Lipman said it opens the door to other suits against the church by sex-abuse victims. According to a report issued in 2004 by Maine Attorney General Steven Rowe, 63 priests and other diocese employees had been accused of sexual abuse over the previous 75 years, but most of those cases would be too old for lawsuits under the statute of limitations. Also, some cases have already been settled by the church and could not be brought again.

The two dissenting justices argued that the impact will be felt by a variety of institutions who could face lawsuits for failing to protect people from their employees.

"With these rulings the court invites lawsuits against businesses, schools, camps, churches and youth sports organizations for real or perceived improprieties by their members or employees that occur outside of the course and scope of the organizations' responsibilities," wrote Justice Donald Alexander.

Fortin originally filed his case in August 2001, claiming that Melville had abused him for seven years, beginning when he was 13. During much of that time, Melville was a priest assigned to St. Mary's and had a close relationship with Fortin's family.

According to court documents, then-Bishop Joseph Gerry received a letter in March 1990 from a Maryland man who claimed that he had been "emotionally, sexually and physically abused" by Melville over a five-year period ending in 1985. Gerry responded to the man's letter, promising to pursue the matter.

In an internal memo, a Maine church official wrote that there had been "serious concerns" about Melville's conduct before the Maryland man's letter. "There could be liability and at least scandal if these concerns were presented," wrote Monsignor Joseph Ford. "The letter confirms the validity of the concerns."

In June 1990, Melville went to a Minnesota treatment facility. In August 1990, he was assigned to St. Joseph's in Lewiston, and to a church in Machias in 1992. He is currently on permanent leave from the diocese with no priestly duties. He could not be reached for comment.

Fortin's 2001 case was dismissed by the trial judge, who relied on the 1997 Swanson case, in which a married couple tried to sue the Catholic Church after the wife had a sexual relationship with a priest she was seeing for marriage counseling.

But on Tuesday, Levy wrote that the Swanson case should not make the church immune from all lawsuits. Levy said the Fortin case can be "distinguished" from Swanson.

"The public interest associated with Fortin's claim is far greater than the public interest considered in Swanson. . . . In matters concerning the protection of children from physical and sexual abuse, societal interests are at their zenith," Levy wrote.

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