Steve,
I don't disagree with your analysis of the law on fraud and fraudulent concealment. (My practice is in commercial litigation and bankruptcy, so I'm dealing with fraud claims and Chapter 11 debtors on a regular basis - one of the reasons I find this thread of interest). The problem I'm having is the application of fraud and fraudulent concealment to the diocese (a religious organization), particularly with proving the elements of representation and concealment.
I assume that virtually none of these fraud claims are based on an alleged "explicit" representation by the Diocese (i.e. "As the bishop, I certify that this priest has never been involved in pedophilic activity"). That leaves us with potential "implied" representations by the Diocese (i.e. when you send a priest to a parish, you impliedly represent that he has never been involved in pedophile activity). Would such an "implied" representation be supportable under the First Amendment (i.e. is it permissible for the law to imply representations by a religious organization about the qualities or qualifications of its religious ministers)? I guess it would be possible to construct a facially neutral secular law on this point (i.e. any organization which knows that its representatives / employees will work with children, impliedly represents that said employee is not a pedophile), but it strikes me as a question which would fall within the ministerial
exception.
With regard to fraudulent concealment claims, I also have concerns about how the imposition of a legal "duty" on the diocese with respect to its priests avoids the ministerial exception. If you get past that concern, then I agree with you that this is solely a fact-based inquiry which usually will not be resolved on the summary judgment stage (unless the court determines as a matter of law that there is no duty).
Regards,
Will
Steven Jamar <[EMAIL PROTECTED]> wrote:
Will & Jim,
Is the problem that you think it will be hard to prove fraud? (It
usually is.) Or that you don't even see a possible fraud cause of
action? Are you saying that making a fraud claim would violate Rule
11? Or that it would not survive a 12(b)(6) (is that still the right
number?) motion to dismiss for failure to state a claim?
States vary on what is required to prove fraud, especially with
respect to the level of knowledge of the falseness required. Some
states even recognize innocent misrepresentation as a claim. Some
states will use a knew-or-should-have-known standard.
Fraudulent concealment is generally a fact issue -- including deciding
whether under the facts as presented the duty arose. In some cases as
a matter of law there is no duty. In others as a matter of law there
is a duty.
A defen! se based on the repentant priest theory would be a fact-based
defense and for the finder of fact to decide, it seems to me. The
church can't simply say "I thought he was repentant" and require the
court to accept that without challenge. The court may choose to
believe it and decide (a) that it is a defense or (b) that it is not a
defense (i.e., there is still a duty to disclose even if the church
believed the genuineness of the repentance).
Failure to speak when one has a duty to allows an inference of
representation of the facts being other than they are.
None of this is easy to prove in court, of course. Indeed, fraud must
even be plead with particularity.
But proof problems are quite different from the possibility of such a
claim being asserted lawfully.
Steve
--
Prof. Steven D. Jamar vox:
202-806-8017
Howard University School of Law fax:
202-806-8428
2900 Van Ness Street NW
mailto:[EMAIL PROTECTED]
Washington, DC 20008
http://www.law.howard.edu/faculty/pages/jamar
"I am in Birmingham because injustice is here. . . . Injustice anywhere
is a threat to justice everywhere."
Martin Luther King, Jr., (1963)
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