Archdiocese concurrence addresses First Amendment

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The Wisconsin Supreme Court upheld the dismissal of a case against the Archdiocese of Milwaukee. The case alleged negligent supervision of a priest during the early 1960s.

The Wisconsin Supreme Court has determined that a plaintiff cannot hold the Archdiocese of Milwaukee accountable for the actions of one of its priests when there is no claim that the Archdiocese was aware of his alleged misconduct.

The Supreme Court’s July 13 decision is likely to be remembered not for the majority opinion, but for the concurrences, which spoke of the constitutional issues despite the fact that the court decided the case had been properly dismissed.

In a concurring opinion that read like a dissent, one justice, with two others joining, responded to compelling questions regarding the Catholic Church’s culpability in priest sex abuse cases that the majority of the court decided not to address.

Justice Ann Walsh Bradley chided the rest of her colleagues for taking the easy way out of the case that ultimately went against the last remaining plaintiff, John Doe 67F — nine others reached settlements with the Archdiocese of Milwaukee before the court of appeals rendered its affirming opinion to dismiss the suit last summer.

The unanimous court decided on technical terms that the plaintiffs didn’t properly state a claim that warranted a lawsuit against the Church — in its capacity as the now-deceased Fr. George Nuedling’s employer. Having resolved that issue, the court stopped short of examining the First Amendment and discovery rule questions also posed in the pleadings.

"The majority wastes a golden opportunity today to provide much needed guidance to this area of law regarding the Establishment Clause and the discovery rule," Bradley wrote. "Because I believe that this court, in its law development capacity, should have reached these issues and concluded that they do not bar the plaintiff’s claims, I respectfully concur."

Chief Justice Shirley S. Abrahamson joined Bradley’s entire concurrence and Justice Patience Drake Roggensack joined her on her opinion of the First Amendment question, but not on her essay regarding the discovery rule ban.

Justice Louis B. Butler, Jr. also wrote a separate concurring opinion — joined by Justice N. Patrick Crooks — noting that the court was basically following the status quo on this case, but also noting that the court has not muted the other matters.

"The majority correctly concludes that Doe does not allege that the Archdiocese knew that Nuedling had a problem as of 1960, and that such knowledge is essential to all three causes of action Doe raised against the Archdiocese," he wrote. "Because of that conclusion, we have explicitly declined to address the Archdiocese’s arguments rooted in the statue of limitations; public policy, or the First Amendment. We do not normally decide constitutional questions if the case can be resolved on other grounds (citations omitted). As such, these questions have not been resolved and will have to be addressed in possible future litigation."

Case Dismissed

The upshot of the main ruling, written by Justice David T. Prosser Jr., was that the trial court dismissal and the Court of Appeals’ affirmation were proper because the plaintiff did not allege that the Archdiocese knew Nuedling was molesting the young man back in the early 1960s. Therefore, the plaintiff’s accusations against the Archdiocese for negligence, fiduciary fraud and breach of fiduciary duty couldn’t stand.

But it’s the somewhat unusual additions to the error-erasing epistle of the whole court that have people talking. One of the plaintiff’s attorneys, James S. Smith of the Brookfield firm Steinhafel, Smith & Rowen SC, said while the decision is unfortunate for his current client, the points addressed or rather unaddressed could bode well for another client, whose case was just dismissed by Judge Michael D. Guolee.

"This decision doesn’t rule on the merits at all," Smith said. "What is significant is that there is no justice endorsing the court’s prior First Amendment and statute of limitations holdings from the Pritzlaff [v. Archdiocese of Milwaukee] and [John BBB] Doe [v. Archdiocese of Milwaukee], the two ’90s decisions," he said. "You have five out of the seven justices joining the two concurring opinions, and three justices endorsing the plaintiff’s First Amendment arguments and two justices expressly joining our argument on the statute of limitations. There is reason to be optimistic given Justice Butler’s comment that these decisions will be addressed in future litigation, I’ve never seen that before."

In sum, Bradley found that alleged priest pedophiles and their patron church can’t run for cover under the Establishment Clause of the First Amendment.

"I conclude these allegations emanating from alleged child sexual assault pose no threat of excessive entanglement between government and religion," she wrote. "The Establishment clause of the First Amendment is not a bar here because secular, not religious standards are implicated. As the [L.L.N. v.] Clauder court instructed: if conduct violates secular standards, this court will provide criminal sanctions and civil remedies as appropriate."

Marquette University Law School Professor Scott Idleman said Bradley ventured down a somewhat slippery slope with her thoughts on the First Amendment.

"She is not taking into account the nature of tort law and how it really is a judgment about the reasonableness of the conduct," he said. "It may be an easy case to talk about tort liability in a sexual assault thing, but if you are opening up tort law you’re also opening up everything. It’s not just sexual assault or negligent supervision or cases of sexual abuse; its negligent supervision for everything; it’s negligent hiring for everything. I don’t think she’s sensitive enough of what that would mean to the relationship between the law and the government and what it’s saying about religious practices themselves."

He also said
you have to look at non-mainstream religions that might have practices beyond the mainstream and what this could mean in that context. The framers of the Constitution said religion was special and he said it needs to be treated that way.

On her second point, Bradley found that the lower courts erroneously relied on BBB Doe v. Archdiocese when they found favor with the Archdiocese’s argument that Doe’s claims are time barred by the statute of limitations, given subsequent court rulings in Miller v. Wal-Mart stores which recognized the tort of negligent hiring, retention and supervision; Doyle v. Engelke and Clauder where the tort focused on employer negligence. Plus, given the court’s ruling in Sawyer v. Midelfort, she said it was silly to stop the plaintiff in the instant case.

"In contrast to the Sawyer case, actual sexual abuse is alleged here," she wrote. "It makes no sense to apply the discovery rule in cases involving false allegation of sexual abuse, but to deny its benefit in cases involving allegations of actual sexual abuse. Such a distinction would be without a principled difference."

The Archdiocese’s attorney, John A. Rothstein of Quarles & Brady, sees things a bit differently. He noted that only the two justices agreed to Bradley’s take on the First Amendment and statute of limitations issues both and even they didn’t call for overruling Pritzlaff and the former Doe case. Thus he says this case, although Bradley and her compatriots voiced some thoughts, shouldn’t lead anyone to believe key issues have been settled.

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"On the issues of the statute of limitations issues and public policy, five of the seven all said it’s in effect a clean slate, we’re not deciding those issues, that would have to be another day," he said. "I think it would be a mistake for anybody, on either side to suggest that the Supreme Court justices have made up their minds on those issues. That’s exactly what they said they are not doing."

Although Smith was heartened by Bradley’s discussion, he said he’s not certain whether his client will ask for a rehearing. But, he said he does plan to go back to Guolee with this opinion in the hopes he will reconsider his dismissal in the Sigfried Widera case.

Former Wisconsin Supreme Court Justice and now law professor Justice Janine P. Geske agreed with Rothstein that although Bradley and Abrahamson did give people a peek into their perspective, no one should read more into the opinion than what’s actually there.

"You have two justices who said they probably would have done something differently and you can infer there is a good chance they may have reversed," she said. But the other five haven’t given you any hint on anything; they could be anywhere."