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----- Original Message ----- [Excerpted]
From: Will Esser
[My response is in bold in between square brackets--Ross
Heckmann]
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).
[The authority I alluded to earlier in this
thread is that which states that for purposes of liability for fradulent
misrepresentation, a person makes an implied representation that he is complying
with the law in connection with what he has undertaken to do. If he is
performing services as a contractor, he impliedly represents that he has
obtained a contractor's license as required by law. If he is selling
securities, he impliedly represents that those securities have been registered
and/or qualified as required by law (or that there are exceptions applicable to
such requirements). In this case, the religious body would be making an
implied representation that it has screened its priests, religious officials, or
other employees, in whatever way that has been required by law. I doubt
that liability for fraudulent misrepresentations should be extended further.]
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)? . . . . it strikes me as a question which would fall within
the ministerial exception.
[I suppose we could ask more broadly, can
the government require a religious body to screen its religious officials in any
way whatsoever before they are permitted to have any private contact with a
young person (e.g., counseling)? Or does the First Amendment bar the
imposition of such a requirement, and a religious body may, if it chooses, free
from all government-imposed liability, hire a known, serial pedophile to
have private contact with a young person? Surely this is one case where
the ministerial exception should not be absolute. Please correct me if I
am wrong, because I am not trying to put words into your mouth, but I
believe you have acknowledged that some form of liability is appropriate under
certain circumstances (albeit not necessarily for fraud).]
Regards,
Will
[Very truly yours,
Ross S. Heckmann
Attorney at Law
Arcadia,
California]
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