Why 85K Needs Reform

(Why The Bishops Are Wrong, Part III)

Last time, we were about to explore the bishops' objections to Bill 1523's so-called intent to "abolish" charitable immunity (the Bill would actually eliminate the cap on damages for only one type of tort – sexual abuse), when what to my wondering eyes should appear but a timely decision by the Maine Supreme Court on this topic, dated Tuesday, July 7.

The entire 36 page decision is here.
A version showing the highlights is here.
A good news summary is here.

In Picher v. Bishop of Portland, the justices declined to accept the argument of the bishop of Portland that charitable immunity is a valid affirmative defense against charges of intentional acts. The act in this case being fraudulent concealment by the Bishop, or, as we would say in Catholic circles, a sin of omission. The decision confirms that silence does not always mean "neutral". The choice to remain silent when there is a moral duty to disclose can definitely rise to the level of fraudulent concealment.

Picher claimed that the bishop knew of the danger that a particular priest posed to parishioners, but did not warn them, and that as a direct result, Picher sustained harm in 1986-88. In this recent ruling, the judges are allowing the claim to be heard. Parts of the decision relate directly to the situation in the Commonwealth, not least the justices' excellent short history of the doctrine of charitable immunity that explains why the majority consider the concept "bankrupt". We will comment on these parts in due time, but first, let's get back to the local bishops' objections to Bill 1523.

As they have many times in the last few years, the bishops lead off with part of a paragraph from Kenneth Kohlberg's article "Modern Reflections On Charitable Immunity" which says the need for charitable immunity arises from the "financial strain of liability" that charities would face without it. Kohlberg explains that charities are important – without them, civil society would have to come up with the services they provide.

However, the bishops treat his definition as if it were an equation – as if charitable immunity was created as a balancing act between victim's rights and corporation's rights – which is clearly not the case. There are many reasons why charitable immunity is an outmoded doctrine, and Kohlberg covers many of them. See especially f.n.4, where he documents many articles which argue against the doctrine.

In fact the "primary rationale" that Kohlberg speaks of – financial strain – has largely vanished, due to liability insurance. This type of insurance was revolutionary in the 50's and 60's, when charitable immunity began to crumble.

This is a fine article and I include this permanent link on the sidebar. Speaking of sins of omission, what the bishops neglect to say about this article is more important than what they do say. For while Kohlberg does start with the rationale for the doctrine, he soon states that the rationale is in serious question. For example, in the very next paragraph, he foreshadows his conclusion:
...in setting forth and assessing proposals and considerations for the legislature, the article concludes that any new legislation involving the charitable immunity statute should, in addition to protecting charities, also ensure that charitable corporations fulfill their public responsibilities and utilize their funds in a manner that instills public trust and confidence in charitable institutions.
Kohlberg's emphasis on "trust", an aspect that I have written about in previous posts, I find particularly relevant to the bishops and laity, because in this emphasis we hear an echo of the massive loss of trust that the abuse crisis has provoked. In Kohlberg's opinion, public trust in the charitable institution is nothing less than a prerequisite for making effective public policy.

A direct link can be made between the trust that Kohlberg speaks of and the equally great need for that same type of trust to be rekindled within the Catholic community. While this Catholic trust cannot be forced by civil law, and while it is limited to a subset of the population, it is not any less important than the trust that Kohlberg speaks of.

It is my position that the changes in the law that CORSAL promotes would strengthen – not weaken – the rehabilitation process and even the teaching authority of the bishops in the long run. The reason is that reform would give church culture a much-needed airing out. Most of the bishops, and especially those in Massachusetts, do not yet see it this way.

Kohlberg next gives several examples of Section 85K in action. Some of them are not pretty. Sadly, few need to be reminded that not all non-profits are truly charitable, or that non-profit hospitals, founded with an emphasis on charity and altruism, have evolved almost beyond recognition. The case of Keene v. Brigham & Women's Hospital is particularly hair-raising. Although 85K was enacted for noble purposes, this case (about a brain-damaged newborn) shows how far from noble it can be in its effects. In another disastrous case (Testa, not directly cited by Kohlberg), a child died, a hospital was found negligent and the family was awarded 20 million. However, due to a mandatory "plain text" reading of 85K, the family's award was reduced to $20,000.

Kohlberg cites articles relevant to how 85K benefits the Catholic hierarchy at the expense of the victims. See especially "Victims Agonize Over Church Deal", Boston Globe, Oct. 8, 2003, at B1, and "Immunity Statute Protects Church From Abuse Lawsuit", Mass. Law. Wkly, Aug. 30, 2004, at 1 (discussing Martin v. Kelley).

Obviously, 85K needs work. But, Kohlberg helps us understand why the judiciary is stuck with 85K, even though there is a well-voiced sense that it is out of date. For example he writes that:
In both his concurring opinion in Conners and his dissent in Keene, Justice Roderick L. Ireland maintained that Section 85K does not “fairly” balance the interests of charitable corporations against those of injured persons. Justice Ireland opined that the statute is “monetarily outdated” and that it fails to recognize the evolving roles of traditionally charitable institutions. Accordingly, Justice Ireland urged the legislature to act “in order that Massachusetts align with the vast majority of States in recognizing that the charitable immunity cap has become obsolete, unfair, and expanded beyond its original intent.” [footnotes omitted]
Moreover, Kohlberg makes clear from a recitation of decisions, appeals and counter-appeals that 85K can be interpreted a number of ways, and even expanded to include not only torts, but "tort-like claims". However, it can never done away with entirely, as long as the judges feel constrained to honor the "plain text" of the law, which admits no wiggle room, no matter how compelling the circumstances. In short, it's a mess, and falls woefully short of the bishops' assertion that it strikes a "careful balance" among competing interests.

Because the results are so unpredictable, and because of the vast changes in liability insurance coverage, judges have repeatedly asked the legislature to reform the statute, a challenge that has gone unanswered. Bill 1523 would not reform the statute, but it would answer judicial objections to some of its shortcomings by making change at the legislative, public policy level. And, more important, it would remove this stumbling-block outright for the legitimate claims of a subset of egregious torts, namely, those involving the sexual abuse of minors.

(to be continued)