By Bill Dries
Daily News
April 21, 2009
http://www.memphisdailynews.com/editorial/Article.aspx?id=42023
The last pending civil lawsuit alleging child sexual abuse by a Memphis priest remained alive this week.
Circuit Court Judge D'Army Bailey denied a motion Monday by the Catholic Diocese of Memphis to dismiss the lawsuit filed against it by Norman Redwing. Redwing alleges, in the lawsuit filed last October, that he was abused by the Rev. Milton Guthrie in the 1970s.
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| D’Army Bailey |
The diocese moved for dismissal, citing Tennessee appeals court rulings, including one from another priest abuse lawsuit filed in Memphis. The Court of Appeals held that the statute of limitations on filing such a claim had passed because the John Does in each case should have asked the church about such abuse within a year after their eighteenth birthdays.?
Redwing, as was the case in the other two lawsuits that went to the appeals court, is not suing Guthrie, who died in 2002. He is suing the diocese, alleging it knew or should have known that Guthrie was a danger to children.
Burden of proof
The diocese has adamantly denied the accusation of "fraudulent concealment."
Casey Shannon, the attorney for the diocese, declined comment on the possibility of an appeal of Bailey's ruling.
Such an appeal could find its way to the Tennessee Supreme Court, which to date has refused without comment to hear an appeal.
"We think Judge Bailey got it right," said Gary K. Smith, Redwing's attorney. "The idea that there is some automatic running of the statute of limitations, notwithstanding fraudulent concealment by the defendant, we don't think to be the law. Every case should stand on its own facts."
Bailey didn't outline a specific reason for his ruling. He made the decision after questioning attorneys on both sides of the case about specific legal issues.
Monday's decision came in the second part of a hearing that began Friday.
"Why would Mr. Redwing wait these many years … to go to a lawyer and say, 'Look, I was abused by Father Guthrie'?" Bailey asked Smith. "That's where my problem is."
Smith pointed out that Guthrie is not a defendant in the lawsuit. Redwing is suing the Catholic Diocese of Memphis. The issue, Smith stressed, is the "church's complicity" in the alleged abuse of more than 30 years ago.
"The question, then, is when Mr. Redwing reasonably should have known that the diocese was negligent," Bailey said.
Shannon agreed.
"He has a duty to investigate," he told Bailey.
Bailey then turned to the standard set in the appeals court rulings.
"If an allegedly abused minor does not file suit by his 19th birthday, then the statute has run?" Bailey asked Shannon, who confirmed that is the effect of the rulings.
Bailey then asked how Redwing would have made the inquiries of church leaders once he turned 18 years old.
Shannon said Redwing could have sued Guthrie and asked diocesan leaders if they knew of such abuse by Guthrie in other instances.
"He never even asked," Shannon said. "It's his duty."
Smith contended in this and other Memphis cases that the diocese would have covered up any past abuse by priests if asked about their histories.
Smith said all he wants is a chance to take depositions to determine what the response might have been, and therefore determine any fraudulent concealment.
"I'm not at all sympathetic with so harsh a standard," Bailey said of the appeals court decisions. "But they are flat-footed on that."
Moving targets
Two civil lawsuits, including one John Doe case filed in Circuit Court alleging child sexual abuse by Memphis priest Daniel DuPree, are at the heart of the Court of Appeals rulings involving when it is too late to pursue such a claim.
The ruling led directly to the dismissal of the DuPree case and was cited in the dismissal of a similar case involving retired Memphis priest Paul W. St. Charles.
In each case, the priests were not the defendants. The Diocese of Memphis was accused and the claim was that the church knew or should have known that each priest was a danger to children.
The claim included allegations that diocesan officials hid the past abuse and moved both priests around to keep them and the church from being held accountable.
The appeals court ruled that it was too late for the victim in the DuPree case to make his claim. The statute of limitations had run on making such a claim in a civil lawsuit.
It began running when the teenager turned 18 and became an adult. A year from his eighteenth birthday, according to the court's ruling, the teenager had an obligation to ask diocesan officials if they knew of any past abuse by DuPree and if they had covered it up.
Earlier this year, the Tennessee Supreme Court also refused, without comment, to consider an appeal in the DuPree case.
"I think there are U.S. Constitutional implications," Bailey said at the end of the first part of the hearing. "I think it's problematic. I think it compromises due process for litigants."
Smith agreed after Monday's hearing. He also said he will ask Circuit Court Judge Karen Williams to "alter or amend" her dismissal in March of the St. Charles case, which was based on the appeals court rulings.
Smith's argument will be based on constitutional claims involving "whether it would be a denial of due process and equal protection to create a class of victim who is automatically barred by the statute of limitations notwithstanding fraudulent concealment."
"Every other victim of a crime or civil wrong would have the right to develop factually whether or not fraudulent concealment tolled the statute," Smith said.
Charity and chastity
Redwing and his family were parishioners at Holy Names Catholic Church during the 1970s when Guthrie was the charismatic pastor of the inner-city Catholic church near the Hurt Village public housing project. Guthrie took in some of the poor families to live with him in the parish rectory.
At one point, 32 people lived in the rectory, according to an obituary by the Memphis Catholic Diocese when Guthrie died.
Redwing said Guthrie supported his family, who lived in the neighborhood. With the support came the alleged abuse, which Redwing has said he accepted at the time as part of the burden of Guthrie's charity.
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