Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
The background check only ensure they are not HIRING a pedophile. It cannot insulate the church from its own knowledge of multiple child victims. That is the knowledge that is driving the various fraudulent concealment arguments. Marci I mean, if fraud is premised upon guilty knowledge, then a church's good faith execution of a plan under which anyone contacting minors is subjected to a criminal background check would seem to be doing what it should and what it can to insure that no one that it knows of is an abuser. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Tom Berg's prior post is correct. Alleged fraud claims against a Chapter 11 bankruptcy estateare dischargeable in bankruptcy under 11 U.S.C. 1141(d), provided the diocese is reorganizing and not liquidating. The exceptions to dischargein 11 U.S.C. 523(a) apply only to "an individual debtor", and the diocese is most likely organized as a corporate sole or unincorporated entity. However, even if the fraud claims were not dischargeable, what are the fraudulent representations which are being made? The common law elements of a fraud claim as I understand them are (1) arepresentation (2) which is false (3) made with the intent to deceive (4) which in fact does deceive (5) which is justifiably relied upon and (6) which causes damage.Does the common law "imply"a representation on the part of the diocese that a priest has never engaged incertain past activities, such as pedophilia? And in the case of fraudulent concealment (which requires a duty to reveal information),is there a state law duty to inform parishioners about either alleged or actual wrongdoing by a priest in the past, when the diocese firmly believes that the priest is repentant and will not do such acts again? I'm with Jim on this one . . . having a hard time seeing how a fraud claim applies in this situation. All the best from Charlotte, NC, Will [EMAIL PROTECTED] wrote: And the standard of goodmoral character is supplied by cannon law? State law? Common law fiduciaryresponsibilities?Marc Stern Actually, in these cases, the standard is more concrete than moral character. The question in every one of these cases is whether the archdiocese knew of the criminal character of the perpetrator priest. We are dealing with rape, statutory rape, and childhood sexual abuse. Typically, thebishop transferring a priest within the archdiocese knew about his criminal activity (whether or not they ever contacted the civil authorities). When one sees transfers between archdioceses, one can assumethat not only is the fellow a criminal, but hemay well have beencaught by civil authorities in the formerdiocese The fraud in these cases is far more serious than financial fraud--it's fraud that leads parents and other priests who never would have done it had they knownto give pedophiles easy access to children. Marci___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? Yahoo! Mail is new and improved - Check it out!___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
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 claimsand Chapter 11 debtorson aregular 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 provingthe 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 itspriests 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: 202-806-8017Howard University School of Law fax: 202-806-84282900 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)___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? Yahoo! Mail - 50x more storage than other providers!___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
On Friday, July 9, 2004, at 12:03 PM, Will Esser wrote: 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)? While in the ordinary case I would agree that the court would not be able to entertain a claim about the general fitness of a priest or minister ordained by the pertinent religious organization, in this case it seems to stretch the privilege to its breaking point to say that putting a known, active pedophile in charge of children is something the church can avoid responsibility for to the child and the parents of the child. The ordination must mean something -- and even if it does not, any organization that would put the active pedophile together with kids (soccer clubs, schools, dance studios, etc.) would be liable. In this case why would the church get treated differently? Isn't this one instance where the equal treatment aspect of establishment would cut against the church? (I do not mean by this to endorse the stronger forms of equal treatment or neutrality sometimes urged by some on this list -- just that it is one factor that in particular cases may in fact determine the result.) Isn't this just the Smith case? No special exemption for the church? I don't see dismissing the claim as a matter of law -- I think the implied theory works as it should here. Indeed, can one ever imagine a church advertising a negative like this -- Join us! Our ministers are not pedophiles! -- Not overly likely or certainly not likely to become common. This is exactly the sort of thing that the implied misrep theory is aimed at redressing. 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) ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
In a message dated 7/9/2004 12:04:44 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: 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. Churches find it difficult, if not impossible, to obtain liability insurance covering these kinds of acts unless they have fairly rigorous policies and practices in place to prevent and interdict paedophile and abuse activities. Typical are flat requirements of a background criminal check on everyone that works with, or contacts minors, for the church. Should an implied representation be charged to a church that complies with such a rigorous program? Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Granting of insurance by an insurance company has never been relevant in any case I ever heard of -- car, house, commercial, specialty lines, etc. And insurance doesn't normally protect against fraud does it? On Friday, July 9, 2004, at 12:54 PM, [EMAIL PROTECTED] wrote: Churches find it difficult, if not impossible, to obtain liability insurance covering these kinds of acts unless they have fairly rigorous policies and practices in place to prevent and interdict paedophile and abuse activities. Typical are flat requirements of a background criminal check on everyone that works with, or contacts minors, for the church. Should an implied representation be charged to a church that complies with such a rigorous program? Jim Henderson Senior Counsel ACLJ -- 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 Face violence if necesssary, but refuse to return violence. If we respect those who oppose us, they may achieve a new understanding of the human relations involved. Martin Luther King, Jr. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Steven, I didn't mean for the insurance consideration to be a dodge to fraud. The question is I am raising has to do with whether an implied misrepresentation could fairly be charged to a church in today's litigation-heady clime, in which insurance is conditioned on such programs of serious self-policiing. I mean, if fraud is premised upon guilty knowledge, then a church's good faith execution of a plan under which anyone contacting minors is subjected to a criminal background check would seem to be doing what it should and what it can to insure that no one that it knows of is an abuser. Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Steve, But what then is the implied representation that the diocese is making? That the priest will not perform pedophilic acts in the future? Such an alleged representation wouldfail as a matter of lawsince representations which are promises, or deal with future events, are not misrepresented "facts" which can serve as the basis for a fraud claim. Or is the implied representation that the priest, at the time of assignment to a parish, is not an active pedophile? __ "While in the ordinary case I would agree that the court would not be able to entertain a claim about the general fitness of a priest or minister ordained by the pertinent religious organization, in this case it seems to stretch the privilege to its breaking point to say that putting a known, active pedophile in charge of children is something the church can avoid responsibility for to the child and the parents of the child." Iwasn't arguing that some form of liability is not appropriate under certain circumstances. My problem is mostly with trying to fitthe square peg of fraud (and resulting punitive damages)intoa round hole whichis better fit bya claim for respondeat superior / agency / vicarious liability. I think there are some distinctions between your comparison of a priestto a day care counselor or person in charge of a kids' soccer club. The latter's job is, by definition, to work with children. A priest may not work with children at all, depending upon the parish he is assigned to, or his position (e.g. a priest assigned to administration for the diocese). It seems inappropriate to imply a duty to the diocese simply because the individual committing the offense is a priest. Will Steven Jamar [EMAIL PROTECTED] wrote: On Friday, July 9, 2004, at 12:03 PM, Will Esser wrote: 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)?While in the ordinary case I would agree that the court would not ! be able to entertain a claim about the general fitness of a priest or minister ordained by the pertinent religious organization, in this case it seems to stretch the privilege to its breaking point to say that putting a known, active pedophile in charge of children is something the church can avoid responsibility for to the child and the parents of the child. The ordination must mean something -- and even if it does not, any organization that would put the active pedophile together with kids (soccer clubs, schools, dance studios, etc.) would be liable. In this case why would the church get treated differently? Isn't this one instance where the equal treatment aspect of establishment would cut against the church? (I do not mean by this to endorse the stronger forms of equal treatment or neutrality sometimes urged by some on this list -- just that it is one factor that in particular cases may in fact determine the result.) ! Isn't this just the Smith case? No special exemption for the church?I don't see dismissing the claim as a matter of law -- I think the implied theory works as it should here. Indeed, can one ever imagine a church advertising a negative like this -- "Join us! Our ministers are not pedophiles!" -- Not overly likely or certainly not likely to become common. This is exactly the sort of thing that the implied misrep theory is aimed at redressing.Steve-- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-84282900 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)___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? New and Improved Yahoo! Mail - 100MB free storage!___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
In a message dated 7/9/2004 12:04:44 PM Eastern Standard Time, [EMAIL PROTECTED] writes: 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). One does not need such an unclear implication. The typical modus operandi is for the Diocese to certify the "good character" of the priest coming in and to give a "health" reason for the need for the transfer. Surely, that is fraud, when they know full well the man is a pedophile. On the point Will made earlier that there is some kind of immunity for the church if the "priest is repentant and will not do such acts again", I'm going to assume that was tongue in cheek, right? Do you know what the average number of victims are for an active pedophile? There is never just one. Marci ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
As many of you already know, Bob Tuttle and I have written a paper about entity liability and supervisory liability in cases of clergy sexual abuse. The paper (entitled Sexual Misconduct and ecclesiastical Immunity) is forthcoming in a Symposium on Church Autonomy in the BYU Law Review, and can be located on-line at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=510424 I don't want to get into the details of the debate about bankruptcy law or the obligations of insurance companies, but I do want to note that Bob and I have looked at all of the decided cases concerning clergy sexual abuse, and they never focus on claims of fraud. Much more typical are claims of negliegent assignment or negligent supervision of clergy, or claims of breach of fiduciary duty toward victims of such abuse. The latter (which tend to involve church leaders promising but failing to help victims, or failing to reach out to known victims and offer them assisatnce) may be intentional torts, and may fall outside of insurance coverage, but they do not sound in fraud and typically do not arise from failure to disclose a clergyman's prior record at the time of reassignment. Cases involving such failures to disclose are far more typically argued as cases of negligent assignment of clergy. (This includes the case of the Archdiocese of Boston, which was argued exactly this way.) Plaintiffs (and defendant religious entities) of course want insurance coverage to continue; it's the insurance companies that have the financial incentive to recast these cases as some form of intentional tort, and therefore outside the policy. Chip Lupu On 9 Jul 2004 at 10:50, Ross S. Heckmann wrote: - 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, butI 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] Ira C. (Chip) Lupu F. Elwood Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NW Washington D.C 20052 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Marci, To the contrary. In the context of an alleged fraud claim, one of the elements which the plaintiff must prove is the intent to deceive. If the diocese firmly believes that the priest is repentant and will not do such acts again (as I understand was the case with many dioceses who believed that after psychological counseling, the pedophile priests would not repeat their conduct), then such a belief should insulate the diocese from claims of fraud (based upon a lack of intent to deceive). Whether such abeliefwould beplausible today, givenall that has happened, is a different storyentirely. That is not to say that the diocese would be immune from other tort actions (i.e. see Chip's recent paper, which I look forward to reading with interest). Will[EMAIL PROTECTED] wrote: In a message dated 7/9/2004 12:04:44 PM Eastern Standard Time, [EMAIL PROTECTED] writes: 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). One does not need such an unclear implication. The typical modus operandi is for the Diocese to certify the "good character" of the priest coming in and to give a "health" reason for the need for the transfer. Surely, that is fraud, when they know full well the man is a pedophile. On the point Will made earlier that there is some kind of immunity for the church if the "priest is repentant and will not do such acts again", I'm going to assume that was tongue in cheek, right? Do you know what the average number of victims are for an active pedophile? There is never just one. Marci___To post, send message to [EMAIL PROTECTED]To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawWill Esser --- Ad Majorem Dei GloriamWe can easily forgive a child who is afraid of the dark;the real tragedy is when men are afraid of the light.Plato (428-345 B.C.) Do you Yahoo!? New and Improved Yahoo! Mail - Send 10MB messages!___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Chip, of course, is right about this, but not because the fraud theory has no teeth. There has never been a known organization that did what the Catholic Church has done here--a pattern of coverup, obstruction, and lies to members of their own churches. The claims Chip refers to involve arguments that a single bishop or archdiocese, a la employer, was liable for the particular victim's rape/sexual abuse. Now, there is a pattern of fraudulent and deceptive behavior that is becoming increasingly clear. The fraud claims are starting to roll in now across the country. Ultimately, the CC need not be singled out, because there are other faiths that have similar skeletons. So I think it very likely that we will see these claims increase into the foreseeable future. Marci Bob and I have looked at all of the decided cases concerning clergy sexual abuse, and they never focus on claims of fraud. Much more typical are claims of negliegent assignment or negligent supervision of clergy, or claims of breach of fiduciary duty toward victims of such abuse. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
At 03:59 PM 7/7/2004, Steven Jamar wrote: Let us not forget that it was the church's actions that brought about the problems for which it is finally being held accountable. It should pay for its malfeasance. Not only will it pay in terms of court interference, it may find itself paying in ways it thought it was avoiding. Many of the abuse cases allege that the church fraudulently concealed priests' predatory bent when assigning them to new parishes. Since a claim sounding in fraud is not dischargeable under the Bankruptcy Code, the diocese might not get all the relief from a petition that it thinks it will get. Vance R. Koven Boston, Massachusetts USA [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
In a message dated 7/8/2004 8:39:49 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: Many of the abuse cases allege that the church fraudulently concealed priests' predatory bent when assigning them to new parishes. I understand how we might find some kind of scienter in the knowing assignment of homosexual paedophile priests to new parishes. But what exactly would the nature of the fraud be? I mean, was a commercial enterprise undertaken between the parish and the homosexual paedophile priest assigned to it? Was the parish induced to undertake the enterprise by fraudulent misrepresentation of the goods? Certainly, where the diocese knew or should have known that homosexual paedophile priests were injuring parishioners we could accuse the diocese of acting with knowledge. I just don't get the fraud part. Help? Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: FW: Interesting question: Portland Archdiocese Filing Chapter 11
I'm a little puzzled as to how the alleged homosexuality of the priests (or, if you prefer, the homosexual nature of their pedophilia) makes a difference to the legal issues here. As I understand it from press accounts, actually, some of the plaintiffs who allege they were molested in Oregon are women, though the majority are men. See Statesman Journal (Salem, OR), Nov. 19, 2002. But in any event, calling this a homosexual paedophile priest scandal seems as unconnected to the legal question as calling it a homosexual white Christian male paedophile priest scandal. Eugene ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Mr. Koven's analysis is plausible. ButWhich court determines whether a fraud was perpetrated? Is it the bankruptcy court? And the standard of good moral character is supplied by cannon law? State law? Common law fiduciary responsibilities? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Vance R. Koven Sent: Thursday, July 08, 2004 12:27 PM To: [EMAIL PROTECTED] Subject: Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11 At 11:47 AM 7/8/2004, [EMAIL PROTECTED] wrote: So, help me understand the application of fraud law to the diocesan ... paedophile priest scandal. 1. Diocese knowingly conceals (and thereby misrepresents) priest's predilection to pedophilia from parishes and parishioners (which we've agreed by hypothesis, though of course the scienter part has to be proven case by case). 2. Parishes and parishioners rely on the priest's good moral character as the basis on which he is allowed to interact unsupervised with minors (a reasonable assumption, though this may need proof as well). 3. Priest is not as represented, owing to the concealed character defect. 4. As a result of the inherent and undisclosed defect in the priest, the priest sexually assaults minor parishioners. 5. Parishioners, at the least, suffer medical and emotional damage whose extent can be quantified for purposes of computing an award (they may also suffer other forms of economic injury, such as church school tuition and contributions paid). Parishes, if not included within the diocese's bankruptcy petition, may suffer damages for the vicarious liability they have for the priest. Where I think Jim is not getting the connection is in thinking that the damages for fraud must be a decrease in the market value of an asset, or the failure in performance of a contract, rather than the full panoply of direct losses a plaintiff can suffer as a result of [the absence of] the concealed fact. While it is more direct to state a claim based solely on the tortious acts of the priest and hold the diocese responsible based on respondeat superior and a variety of other direct and vicarious liability theories, the fraud theory could hold up, too. If it does, then the diocese might find an undischargeable debt on its hands. Vance R. Koven Boston, Massachusetts USA [EMAIL PROTECTED] ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
I am posting some responses to the questions below from my colleague Jason Kilborn. His answers are in all caps. Christine Corcos Associate Professor of Law Faculty Graduate Studies Program Supervisor Paul M. Hebert Law Center, Louisiana State University Ok, here is an interesting one for all of you: -- Under Employment Division v. Smith applies, does the Archdiocese have a free exercise defense to, for the example, the appointment of a trustee or an examiner? I DON'T THINK SO. FIRST, A TRUSTEE OR EXAMINER PROBABLY WON'T BE APPOINTED UNLESS THE CHURCH IS GUILTY OF GROSS ECONOMIC MISMANAGEMENT (E.G., A LA ENRON). THAT'S NOT ITS PROBLEM (MASS TORTS ARE ITS PROBLEM), SO A TRUSTEE/EXAMINER IS UNLIKELY. IF ONE WERE APPOINTED, THOUGH, I DON'T SEE ANY CONFLICT BETWEEN THE ECONOMIC CONTROL A TRUSTEE WOULD IMPOSE AND THE FREE EXERCISE OF THE CHURCH'S RELIGION. CERTAINLY A CONNECTIION EXISTS--A TRUSTEE MIGHT SAY NO FUNDS TO X, Y, OR Z THAT THE BISHOP THINKS IS IMPORTANT, BUT I DON'T SEE THIS AS INTERFERENCE IN RELIGIOUS PRACTICE, AS OPPOSED TO INTERFERENCE IN ECONOMIC MATTERS ONLY TANGENTIALLY RELATED TO MATTERS OF RELIGION. -- Might the Archdiocese have any RFRA defense in a bankruptcy proceeding, post-Boerne? I DON'T THINK SO--AND I THOUGHT RFRA WAS DEEMED UNCONSTITUTIONAL YEARS AGO . . . . I DON'T SEE ANY BASIS FOR A RFRA CLAIM IF THE CHURCH SEEKS RELIEF IN BANKRUPTCY VOLUNTARILY IN ANY EVENT. -- If this is a voluntary proceeding, does that automatically finish any free exercise defenses the Archdiocese might otherwise have? I THINK SO, BUT YOU KNOW MORE ABOUT THE CON LAW STUFF THAN I. THE CHURCH HAS WAIVED SUCH OBJECTIONS BY SEEKING RELIEF AND SUBJECTING ITSELF TO INCREASED SUPERVISION AND OVERSIGHT--QUID PRO QUO. -- Does anyone know what would be included in the property of the estate? Religious relics? Schools? THIS IS A MATTER OF OREGON LAW, BUT MOST LIKELY EVERYTHING THE CHURCH OWNS IS PROPERTY OF THE ESTATE. ONLY INDIVIDUALS HAVE EXEMPTIONS TO AVOID THEIR BECOMING WARDS OF THE STATE. ORGANIZATIONS--INCLUDING CHURCHES--HAVE NO EXEMPTIONS UNDER GENERAL LAW. MAYBE OREGON HAS SOME SPECIAL CHURCH-PROPERTY EXEMPTION LAW, BUT I DOUBT IT. ANY IMMOVABLE (REAL) PROBABLY, LIKE SANCTUARIES AND SCHOOLS, IS MOST LIKELY NOT EXEMPT AND IS PROBABLY THE CHURCH'S ONLY VALUABLE PROPERTY. THIS DOES NOT MEAN THAT RELICS WILL BE SOLD TO THE HIGHEST BIDDER. IT JUST MEANS THAT CREDITORS WILL HAVE TO RECEIVE IN A PLAN AT LEAST AS MUCH AS THEY WOULD IF THE RELICS, SCHOOLS, ETC., WERE SOLD AND THE NET PROCEEDS DISTRIBUTED TO CREDITORS. -- Is the Archdiocese correct in treating this case as a mass tort-related bankruptcy, or does the unusual nature of the debtor make this a bad call? I DON'T SEE ANY OTHER WAY TO TREAT THE CASE, AND HOW YOU CALL IT IS ALL BUT IRRELEVANT. A DEBT IS A DEBT IN CHAPTER 11, AND CALLING THIS A MASS TORT CASE MIGHT EVEN IMPROVE THE CHURCH'S BARGAINING POSITION. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: FW: Interesting question: Portland Archdiocese Filing Chapter 11
I much appreciate the response, but I thought I might ask a couple of follow-up questions. First, how would Chapter 11 law handle debtors who routinely give away goods and services, for the sake of giving them away? Businesses generally try to make money with nearly all their activities; that's broadly consistent with chapter 11's goal of preserving and augmenting the estate for the benefit of creditors, and with bringing the business back to profitability. But many of the Catholic Church's activities just give away goods (e.g., food at a soup kitchen) or services (e.g., subsidized education). I take it that if a business was giving away lots of goods and services, with no real hope of getting an indirect profit out of them, the trustee would stop that. (Same for individual charitable contributions, though there are special exemptions for that -- and of course there's been RFRA litigation over the issue as well.) Would the trustee likewise tell the Church to stop running soup kitchens or homeless shelters? To stop running its schools, if they're set up to lose money? Or would the Church be able to argue that it has to run these projects to get income in the form of parishioner contributions? What would it have to prove to have this argument win? I take it that similar issues can come up with Chapter 11 reorganizations of any charitable institution -- but I rarely hear of such reorganizations. I'd love to hear what bankruptcy experts think about that. Second, how persuasive would the argument that the Church asked for reorganization, and now has to take the bitter with the sweet, be given Sherbert v. Verner? After all, Sherbert held that a state couldn't say If you want unemployment benefits, you have to agree to take any job, even if it conflicts with your religion. RFRA presumably retains that doctrine, and as a liberty right, not just an equality right (as Justice Stevens argued Sherbert should be understood). And of course federal courts have generally held (correctly, in my view) that RFRA as to the federal government does survive City of Boerne. So couldn't the Church likewise argue that once the government offers a generally available benefit, here Chapter 11 rather than unemployment benefits, it has to respect beneficiaries' religious freedom claims even in distributing the benefit? Many thanks, Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christine A Corcos Sent: Wednesday, July 07, 2004 8:00 AM To: [EMAIL PROTECTED] Subject: Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11 I am posting some responses to the questions below from my colleague Jason Kilborn. His answers are in all caps. Christine Corcos Associate Professor of Law Faculty Graduate Studies Program Supervisor Paul M. Hebert Law Center, Louisiana State University Ok, here is an interesting one for all of you: -- Under Employment Division v. Smith applies, does the Archdiocese have a free exercise defense to, for the example, the appointment of a trustee or an examiner? I DON'T THINK SO. FIRST, A TRUSTEE OR EXAMINER PROBABLY WON'T BE APPOINTED UNLESS THE CHURCH IS GUILTY OF GROSS ECONOMIC MISMANAGEMENT (E.G., A LA ENRON). THAT'S NOT ITS PROBLEM (MASS TORTS ARE ITS PROBLEM), SO A TRUSTEE/EXAMINER IS UNLIKELY. IF ONE WERE APPOINTED, THOUGH, I DON'T SEE ANY CONFLICT BETWEEN THE ECONOMIC CONTROL A TRUSTEE WOULD IMPOSE AND THE FREE EXERCISE OF THE CHURCH'S RELIGION. CERTAINLY A CONNECTIION EXISTS--A TRUSTEE MIGHT SAY NO FUNDS TO X, Y, OR Z THAT THE BISHOP THINKS IS IMPORTANT, BUT I DON'T SEE THIS AS INTERFERENCE IN RELIGIOUS PRACTICE, AS OPPOSED TO INTERFERENCE IN ECONOMIC MATTERS ONLY TANGENTIALLY RELATED TO MATTERS OF RELIGION. -- Might the Archdiocese have any RFRA defense in a bankruptcy proceeding, post-Boerne? I DON'T THINK SO--AND I THOUGHT RFRA WAS DEEMED UNCONSTITUTIONAL YEARS AGO . . . . I DON'T SEE ANY BASIS FOR A RFRA CLAIM IF THE CHURCH SEEKS RELIEF IN BANKRUPTCY VOLUNTARILY IN ANY EVENT. -- If this is a voluntary proceeding, does that automatically finish any free exercise defenses the Archdiocese might otherwise have? I THINK SO, BUT YOU KNOW MORE ABOUT THE CON LAW STUFF THAN I. THE CHURCH HAS WAIVED SUCH OBJECTIONS BY SEEKING RELIEF AND SUBJECTING ITSELF TO INCREASED SUPERVISION AND OVERSIGHT--QUID PRO QUO. -- Does anyone know what would be included in the property of the estate? Religious relics? Schools? THIS IS A MATTER OF OREGON LAW, BUT MOST LIKELY EVERYTHING THE CHURCH OWNS IS PROPERTY OF THE ESTATE. ONLY INDIVIDUALS HAVE EXEMPTIONS TO AVOID THEIR BECOMING WARDS OF THE STATE. ORGANIZATIONS--INCLUDING CHURCHES--HAVE NO EXEMPTIONS UNDER GENERAL LAW. MAYBE OREGON HAS SOME SPECIAL CHURCH-PROPERTY EXEMPTION LAW, BUT I DOUBT IT. ANY IMMOVABLE (REAL
RE: FW: Interesting question: Portland Archdiocese Filing Chapter 11
Although Marci and Idisagree somewhat about the scope of the church autonomy doctrine, I certainly agree that there are some instances when courts can decide church issues by applying neutral principles of law. And it may be that, depending upon the actual circumstances in which the Portland diocese finds itself, that a judge or a trustee will be able to resolve all the questions presented using such neutral principles. But my question focuses on what happens when that isn't so. Certainly, if a court or trustee begins to tell the diocese which parishes to close based on some accounting principle of "cost", or if it limits the number of masses or other services performed in a certain area based on that same "cost" issue, or if it begins to fire priests from their current positions so as to increase the "bottom line" of the diocese, that raises church autonomy issues. No? And if so, I'm wondering what implications that may have, both for the diocese and the bankruptcy court. Von G. Keetch Kirton McConkie Salt Lake City, Utah From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Wednesday, July 07, 2004 11:05 AMTo: [EMAIL PROTECTED]Subject: Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11 In response to Von's posting below, I would say that the so-called "autonomy" doctrine is considerably narrower than Von's characterization. The courts have been foreclosed from deciding solely ecclesiastical disputes, but the question before the court must be SOLELY ecclesiastical in nature to justify the court's refusal of jurisdiction. If the case also involves neutral principles of law, the fact the court might also have to understand or know ecclesastical principles does not foreclose jurisdiction. If a church has decided to take advantage of the federal laws protecting its assets, the fact that a neutral, govtdecisionmaker is involved in the distribution of assets is not troubling under either of the Religion Clauses. The distribution of assets will have to occur according to neutral financial or monetary principles, and the judge can do that. If the Church did not want such a neutral arbiter, but instead wanted to deal with the crisis through pure ecclesiology, it was foolish to file for ch. 11. Having said that, I assume the Church will invoke RFRA (as opposed to the autonomy theory) when it feels as though the generally applicable, neutral chapter 11 law impinges on areas it does not wish the court to enter. I would think the arguments would be rough-sledding, but one must wonder whether RFRA wasthe element that led the archdiocese to take a step that would havebeen unthinkable to the Church even 5 years ago. Marci My question is whether, under the Establishment Clause and the churchautonomy doctrine that some of us advance so strongly from time to time,the federal court would have the authority to order such trusteesupervision of the diocese, even with diocese consent. Wouldn't suchsupervision almost by necessity delve into the church's basic religiousdoctrine and polity, essentially allowing a government agent to "run"the diocese? If so, then where does that lead? To a conclusion thatall of a bankruptcy court's normal powers (at least where those powerswould be used to supervise the ecclesiastical operations of a religiousorganization) may not be available in a case such as this? Or to thebroader conclusion that the bankruptcy protections themselves may not beavailable to a religious organization under some circumstances? ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: FW: Interesting question: Portland Archdiocese Filing Chapter 11
I doubt a court would tell a church to fire priests. But it could conceivably set limits on various line items in the budget, including total salaries for priests, physical plant budget, etc. Indeed, it seems it would need to so something like that. The church sought the protection of organizing itself as a corporation and it sought the protection of the courts in bankruptcy -- and it has availed itself of the benefits -- it has limits as to what it can now pick and choose. If the church were to refuse to limit its physical plant budget, then I could see the court stepping in and looking at attendance, history, value, contributions (income), and so on. I think the idea that the court could force the church to change into a for-profit institution is preposterous hyperbole. That it might force the church to trim its charitable actions seems likely and entirely within the proper authority of the court under these circumstances. Let us not forget that it was the church's actions that brought about the problems for which it is finally being held accountable. It should pay for its malfeasance. -- 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 For all men of good will May 17, 1954, came as a joyous daybreak to end the long night of enforced segregation. . . . It served to transform the fatigue of despair into the buoyancy of hope. Martin Luther King, Jr., in 1960 on Brown v. Board of Education ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
