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| D.4.8. - Enough Already about the Misconduct Commission Western Massachusetts Catholics December 24, 2008 http://westernmassachusettscatholics.blogspot.com/2008/12/d48-enough-already-about-misconduct.html [court documents] MASSACHUSETTS — We've already seen that the role of the commission was ambitious. They were supposed to help the bishop, the victims, accused priests, district attorney, laity, and general public. In hindsight, there was probably no way that they could have done it all. But, their role was also increasingly ambiguous. The commission was created in 1992 to provide recommendations for action to the bishop, with a decided emphasis on the "Improper Conduct of Diocesan Personnel". But, over time, there was more than a hint that its members saw themselves as a sort of Swiss Army knife, ready to dispense justice, therapy or recommendations, depending on what was needed. The new rules for the commission in July '02 stemmed from a ferocious fight among law enforcement and dioceses throughout the Commonwealth. Influenced by the Boston abuse scandal, the DA's of each diocese wanted lists of victims, or accused priests, or both, in order to review potential charges. These requests were resisted by all four dioceses. Yet, one by one, they complied. Springfield was the last to capitulate, around March 14, 2002. In this excerpt from the Union-News on March 5, Mr. Bell, the commission chairman, explains that commission members questioned the benefits of turning cases over to civil authorities: …..Bell is concerned that victims of sexual abuse by priests may have reached closure from those incidents and that contacting them now would do more damage.It is interesting that Bell puts the concerns of the commission in moral terms – forgiveness, punishment, acknowledgement and closure. This range reflects the first stage of awareness mentioned by Bishop Maguire, in which sexual misconduct is viewed as a moral failing. But, Bell's remarks are entirely about the attitudes of victims toward their abusers. The accused priests are absent from this picture. And, the original mandate of the commission (making recommendations for action against the accused priests) is absent, as well. His comments suggest that the commission placed a higher value on "closure" than on justice - or, at least, that the justice to be found within church walls was preferred to that found elsewhere. This "either/or" thinking - either a "church" solution, or a "civil" solution - is a hallmark of church reasoning. Mr. Bell's arguments are not subtle; they plainly suggest that the church would be better off closing ranks than cooperating with the authorities. Nevertheless, the ranks were not closing in the summer of 2002, but rather, splitting apart under the pressure. Increasingly, lawyers were showing up at Misconduct Commission meetings. And, the complaints were turning into lawsuits more often. In July, the chairman announced that if an accuser filed suit, that action would now preclude a meeting with the commission: "We will not discourage anyone from filing suit, but if they do, it will negate any service that the commission could be to them." One of the victims who was not allowed to appear before the commission countered: "We want to see Lavigne defrocked, and we want to be able to tell our story to the commission." But, on advice of counsel, the commission insisted that diocesan lawyers be present any time the victims appeared with their own lawyers. Bell said that he wanted members of the lay commission to avoid situations in which they might be called to testify about what was said at its meetings. Indeed, the opinion of Bell, and the legal opinion itself (which almost certainly came from Mr. Egan, lead counsel), was prescient on this point. In the 2008 settlement, former Misconduct Commission members were subjects of interest during depositions and insurance lawyers wanted to examine commission documents for discovery. Diocesan lawyers resisted. They even tried to claim "confessor-priest" privilege for commission documents, but were turned down by Judge Agostini's Jan. 3, 2007 decision. The legal team of the Diocese became more and more involved with the commission as the suits mounted, and there are signs that this legal wrangling moved into a new phase. Dupre referred to this new phase when he said in October, "These abuse claims are proceeding in another arena – the legal system. This is a choice made by the victims and we respect it." However, this respect did not preclude him from trying to throw many of them out of court. By the spring of 2003 the effort was well underway. The legal strategy took several paths. Broadly, the Diocese claimed "church autonomy" any time they wanted to prevent civil suits that sought to examine church records. "Freedom of religion", "separation of church and state", "ecclesiastical privilege", and "confessor-priest" defenses were also raised. Speaking of the disputed cases, Dupre said "You don't hand out money to people just because they ask for it. There has to be some legitimacy to that claim." He called the motions to dismiss "…a legal thing…" and said that they did not "…affect our willingness to settle with anyone who has a legitimate claim." Many of these arguments denied that civil society could pry into the bishop-priest working relationship. Though this argument had already been decided in the Boston abuse cases in Feb. of 2002, Judge Welnick of Hampden Superior Court agreed to reconsider it in Spring, 2003. When seeking to dismiss a suit by a North Adams man against Lavigne, Maguire and Rev. Thrasher, Attorney Egan argued that the court would be violating the separation of church and state if it examined the relationship between Lavigne and his superiors: "No court or jury can constitutionally decide what a reasonably prudent bishop should have done. There is always the proper and understandable request for…the deepest pockets that can be found. But it cannot be allowed to trump constitutional restraints." Dupre initially sought to have this one case dismissed, but the idea was for the dismissal to serve as precedent, so that all such "higher-up" suits that questioned the bishop/priest relationship could be thrown out, eventually. To buttress his case, Egan had canon lawyer Rev. Daniel Foley testify under oath that the relationship of a priest to his bishop is substantially different than that of an employee to a secular employer. The effort to dismiss cases did not cease, but only increased throughout 2003. In Sept. 2003, Dupre attempted to dismiss five more suits on the grounds that the charitable immunities law before 1971 precluded suits against the church. It was this attempt that prompted the DeMontigny affidavit which contended that the highest levels of the diocese were aware of Lavigne's problems at a much earlier time than they had admitted. The other significant thing that happened in September, 2003 was that Dupre and Stobierski agreed to consider mediation for a group of consolidated cases. This mediation finally came to fruition in August, 2004 (with the Diocese now under McDonnell), but not without a riotous interlude in the spring of 2004. In retrospect the Stobierski mediation was almost certain to end badly, because by the time a settlement was worked out, in August, cooperation between the Diocese and its insurers must have been near an all-time low. Still, the pressure for McDonnell to find some resolution to the growing caseload probably forced his hand. In addition, the urgency to settle cases - any cases - after the resignation of Dupre, so as to turn a new page, at least metaphorically, was manifest. These twin pressures are a likely cause of the great disparity between the settlement amounts. While the average amount of the 45 claims in the 2004 settlements was $168,478, the average amount of the 59 claims in 2008 was far less (around $76,000). The lawsuits about church autonomy and charitable immunity and so on were not resolved, and eventually all of them were put on hold. The new idea broached during the early months of McDonnell's administration was to declare a 45-day truce, halting any new legal action. This went into effect on around April 15 and ended June 1. The sides drew ever closer to settlement. Eventually, around August, the long-awaited settlement of the 46 claims consolidated under Stobierski was concluded. Of these, only 22 had actually sued the diocese. The other complaints had been brought to the Misconduct Commission. The resolution of the 46 has to be counted as a victory for the new McDonnell administration. One of the victims went so far as to praise McDonnell, saying that the new man had done in four months what Dupre was unable to do for several years. And yet, this still left around 30 unresolved cases. In time, this would grow to the 59 claims which were finally settled in 2008. But, back in late 2004 and early 2005, the groundwork was laid for the recent settlement by an interesting legal maneuver. The "tolling agreements", so-called, are an ingenious solution to litigation. The Commonwealth has a three-year window for filing civil suits in cases of sexual abuse. A victim must come forward within three years of first realizing that their emotional problems stemmed from sexual abuse. Since the Boston Globe Spotlight Team articles had kicked off on Jan. 6, 2002 with "Church Allowed Abuse By Priest For Years", the three-year window would arguably close on Jan. 6, 2005. This explains why, on Jan. 5, 2005, there was a flurry of last-minute legal activity. Attorney Stobierski filed six suits on that day. Attorney Durso filed several more. Four other complaints were made to the commission. But soon, the necessity of filing suits would be altered by the tolling agreements. In early 2005, a diocesan official confirmed the existence of an agreement that would allow the Diocese and the accusers to try to reach a financial settlement without the Diocese being named as a defendant in the suits. This worked to the advantage of the Diocese almost immediately, because they could truthfully claim, as they did in a press release from Jan. 7, that "...the Diocese was informed earlier this week by Atty. Stobierski of his intention to file these legal actions against individuals; the diocese was not included in these civil suits...". In return for these concessions, the Diocese would suspend the ticking clock of the statute of limitations, so that in the event that the negotiations collapsed, the victims would retain their right to sue. The fact that the reimbursement of the 7.75 million paid out by the Diocese was still being resisted by the insurers of the Diocese some six months after the fact was another important reason for the tolling agreements. The Diocese was unwilling to go forward and settle the remaining 30 or so claims left hanging (those not represented by Stobierski) without first coming to terms with their insurers about the bill for the 7.75 million. The tolling agreements allowed the Diocese to avoid paying any new claims, and at the same time allowed the new claimants to retain their statute of limitation rights to sue in the future, should the settlement talks ultimately fail. From the lawyers' perspective, it allowed for a future payday, while assuring that their clients would not lose any legal rights due to the SOL lapsing. |
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