Review: "As The Pendulum Swings From Charitable Immunity To Bankruptcy, Bringing It To Rest With Charitable Viability", an article adapted from an address before the National Diocesan Attorneys Association on April 27, 2008, by the Most Reverend Thomas J. Paprocki.
for our excerpts:
for the whole article:
When confronted by the fallout from sexual abuse, officials of the church sometimes suggest that it is the church which is being victimized. In this essay Paprocki (an archbishop in Chicago) takes the idea a step further: he identifies the church with a famous literary victim, i.e., the hapless protagonist of the "Pit and the Pendulum". It is only a matter of time, according to Paprocki, before the one strapped to the table (the church) is sliced to ribbons because of increased liability for abuse claims, unless a rescue operation is mounted. But, what can we do?
Paprocki has some ideas. His essay acknowledges that charitable immunity is on the way out and suggests what the strategy of the bishops will be on the day that the doctrine is banished forever.
"…Some of these devices to help preserve charitable viability are under our own control, such as forming parishes as separate not-for-profit corporations or express trusts in order for their structures to more closely reflect their status in canon law as separate juridic persons that are distinct from the diocese. Others may be pursued as legislation or may be decided by the courts themselves as a natural evolution of the doctrine of charitable immunity…"These ideas are labeled "compassionate" by Paprocki, but their outstanding characteristic is how practical they are. They are a powerful wish list that any defense attorney would covet. If they were followed, charitable immunity would be broadened (albeit under different names), instead of continuing on its present course toward oblivion.
For these reasons his essay is particularly relevant to Massachusetts, which as we've seen is one of the few states offering statutory protection to charitable institutions, and which certainly affords the most generous protection because of the $20,000 cap on damages.
I might add that the fact that charitable immunity is passing away on the national stage, so easily accepted by Bishop Paprocki, is not even alluded to in the many statements of the MCC (Massachusetts Catholic Conference), who pontificate before the select joint committee as if nothing has changed in the world since 1971, when the statute took its present form under Governor Sargent.
In our excerpts Paprocki grounds his rationale for charitable immunity in humanitarian terms. We've heard this argument before. It's based on the idea that if churches are prevented from doing good deeds, then those good deeds must necessarily fall to the government, with attendant costs. Paprocki's argument has merit, but it's undercut by his assumptions.
He places great emphasis on honoring the intents of charitable donors, but never shows curiosity about how the donors feel about abuse awards. What if parishioners were polled about the use of the Sunday collection money? Would the results of such a poll support his contention that the damage awards are ill-spent? Or might it substantiate that awards are viewed as a just allocation of church resources? This question is missing in action, yet it goes to the heart of the issue.
Instead, Paprocki seems to have different concerns. He asks "how can we reduce the cost of abuse?" rather than "how can we reduce abuse?" or "how can the church best recover from the abuse scandal?"
Those looking for high-minded moral arguments in this paper will not find them – this is all about legal strategy and saving money. The question from his perspective seems to be: "Having enjoyed full protection from liability all these years, and having seen our defenses shredded, one by one, over the last decade or so, how can we secure new protections for the corporations of the respective dioceses?"
His main contention – that the church must stay solvent, at all costs, above all other concerns – is dubious. It's as if the argument of the financial corporations - "we're too big to fail" - is being rephrased: "we're too big-hearted to fail".
If that is true, then where are the bishops large-hearted concerns for victim's rights? Why is it that the church consistently needs to be backed into acknowledging these rights in a settlement just before a case is about to go to trial?
Paprocki provides no answers. He's too busy asserting that self-preservation of corporation sole is not only a right, but also a duty. Indeed, he presents it as a divine right, and a divine duty. That is a long way from the humanitarian ground that he started from.
He argues that the church is not only special because it is a charitable institution, but because its self-understanding is that it is the body of Christ. This institution must be understood "in keeping with the rights conferred by divine institution and canon law." The fact that civil law does not recognize canon law is not allowed to intrude.
Paprocki says throughout that civil law needs to reflect a "reasonable" balance, but this is not presented as a negotiable item. It's understood that the bishops will be the sole judge of what is "reasonable". The trump card is always the same – the divine institution of the church. That this is not a convincing (or even an allowable) argument in a court of law does not seem to arrest Paprocki's train of thought.
However, other Catholic thinkers have pondered the intersection of civil and religious rights, with different results. Some have found that there are well-defined limits to the exercise of religious freedom. One such was Fr. John Courtney Murray, S.J. In his 1967 commentary on the "Declaration on Religious Freedom", a Vatican II document) he wrote:
"The right to religious freedom is itself inalienable. Its exercise, however, is necessarily subject to limitation in particular cases. “Conduct,” said the Court in the Cantwell case, “remains subject to regulation for the protection of society.”……A leading definition, frequently cited, was given in the case of Watson vs. Jones in 1872: “In this country the full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine, which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all.” In Davis vs. Beason in 1890, the last of these limiting norms is again laid down, in the statement that action in the name of religion may claim protection only when it is “not injurious to the rights of others.”Paprocki justifies his wish to expand charitable immunity by suggesting that the church now faces complete liability exposure, but it is far from complete, at least in Springfield, and I suspect in most other dioceses.
He consistently treats liability as a cause which needs to be met with new actions. But, is it not an effect of past irresponsibility, negligence, or criminality? Whatever the definition or however one feels about liability, Paprocki's approach is clear – if increased liability is the problem, then the church needs to find new ways to be less liable.
The possibility that the church has not become more liable, but only joined the rest of society, has not occurred to Paprocki. The church in any case has no free pass to be "injurious to the rights of others" (Murray) and for this reason its conduct is "subject to regulation for the protection of society" (Murray, again). These are far from punishments, as Paprocki suggests, but rather common sense guidelines - a change for the better.
Paprocki builds much of his case around a familiar scapegoat – the conditions of our free society. He claims that the times encourage frivolous lawsuits. To be sure, there are crackpot lawsuits, and he cites some beauts. In the original speech, he gives good examples of nutty awards, many of the scalding-hot-cup-of-coffee-in-lap variety, except that they tend to involve statues of the Virgin Mary.
For Paprocki, this proves that our "highly litigious culture" is a bad thing. But others have made a persuasive case that tort litigation has greatly aided the church, and the rest of society, by providing a mechanism for justice. See especially "Holding the Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse" by Timothy Lytton, Harvard University Press.
Ironically, the restoration of the teaching authority of the bishops, which everyone seems to want, would be achieved sooner if the bishops began facing up to their responsibilities in the abuse scandal, but Paprocki seems not to have thought of this. He seems determined to make the clock run backwards. One wonders how this wrong-headed argument ever got off the ground.
It makes more sense when we reflect that his extreme positions could be part of a teaching mission of a different sort. The occasion for this wish list about new protections was the annual convention of an association of diocesan lawyers. (The article based on the speech appeared some months later, in the Journal of Catholic Legal Studies, Vol. 48:1.)
The implications of what Paprocki means by protected "religious decisions" are made clearer and at exhaustive length by Rev. John Coughlin, in the paper that Paprocki quotes from. (John J. Coughlin, Canon Law and Constitutional Law: The First Amendment, Anthropology, Separation, and Neutrality 50–51 (Notre Dame Law Sch., Legal Studies Research Paper No. 07-24, 2007)
The defense of the bishop's prerogatives has much to do with the hiring, firing and retention of priests. Coughlin goes so far as to say that a decision by a bishop that might result in a repeat offender offending once again - even that outcome - is essentially a by-product of a religious decision and as such deserves special protection under the Constitution of the United States.
Coughlin's definition of "religious decisions" to encompass employment retention is critical. It is impossible to square his broad defense of religious decision-making with civil law, because the state would never allow a pattern of employment decisions, even religious ones, if they are proven to be "injurious to the rights of others" (Murray).
This is such a basic concept of justice that it hardly seems questionable. Yet Paprocki and Coughlin are prepared to push the envelope that far. We seem to have arrived at a new stage of debate about what the Catholic church may or may not do in the pursuit of its aims.
Since Paprocki leans on Coughlin's paper so much, we will mention it in the next installment. His views about the sanctity and special nature of the bishops' employment decisions will not surprise students of church governance, but the starkness of his examples may.
Paprocki is right on one point – the church has been stripped of its protection against abuse liability relatively recently (in the big picture). It's also easy to agree that it is a traumatic occurrence. According to Paprocki, as long as sex abuse was viewed as a moral failing (prior to 1960), and even into the therapeutic era (1960-1990), the situation was tolerable. It was only after the "relatively unchecked exposure" to liability after 1990 or so that things started to go bad.
By 1987 or so, liability insurance for sex abuse and related crimes was basically unavailable, at least in the Springfield Diocese, and, I suspect, elsewhere. Here, there was no insurance before 1967 or so, apparently because it was not felt to be needed. So, we're talking about a relatively narrow framework where negligence was covered by insurance, roughly 1967 to 1986.
He cites sex abuse litigation as a major cause of the downfall of the doctrine of charitable immunity, but this is nonsense. We have just established, in his own writing, that the onset for abuse litigation was 1990. The demise of charitable immunity was well underway by 1949, and accelerated by decisions such as Abernathy (1969). It's clear that the litigation that Paprocki speaks of (1990 - present) had nothing to do with the fall of charitable immunity.
Paprocki's Wish List
Paprocki's list of the "considered, compassionate and constructive" way forward is all about money. This is a wish list. He would like the bishops to be allowed to define and control the amount of compensation for those harmed by the church. His main suggestions follow, with comments.
• Lobbying the state legislatures to enact legislation that limits tort recovery against a charitable organization to the extent of the organization’s annual aggregate liability insurance, but that also requires that the organization maintain a minimum level of insurance coverage.
[explicitly mentioned by MCC (Massacusetts Catholic Conference, the lobbying arm of the bishops). Maine considers that if an organization has liability insurance, they automatically waive the charitable immunity doctrine. This allows the plaintiff to recover damages from the insurance company up to the limits of the policy. It is a loophole.]
• Capping compensatory damages at predetermined levels, given that insurance may not be available.
[maintaining cap. This is what the current 85K cap of $20,000 in Massachusetts provides for.]
• Eliminating punitive damages in cases involving charitable institutions.
[in other words, expanding (not contracting) the reach of charitable immunity. The poster child for this concern is Vermont, where the diocese got steamrolled by two different jury awards for punitive damages in the millions.]
• Placing caps on attorneys’ fees when suing a charitable institution.
[a new cap is proposed.]
• Providing statutes of limitations that are consistent in their application and meaningful, rather than subject to questionable notions such as “recovered memory” and ambiguous terms such as when the harm is “discovered.”
[a slap in the face to victims. It is interesting that the bishops in Massachusetts go out of their way to praise the "discovery" rule – but that this bishop feels otherwise.]
• Requiring that the charitable institution have actual knowledge of a perpetrator’s previous wrongdoing in order to be liable for any subsequent harms.
[a high and unrealistic standard. Requires a jury trial level of certainty - but most allegations or suspicions remain unproven, even under the best circumstances. They are almost always "settled" without an admission of guilt. Paprocki asks for a standard to limit liability which is higher than the standard for settling cases.]
• Requiring that indemnification be provided in conjunction with government grants and contracts for the provision of social services.
[yet more insurance. The MCC would agree, on the principle that any insurance is good insurance. "Indemnification" is a loophole. This is vaguely worded, but it suggests that the sponsoring organization would provide a get-out-of-jail-free card to the providers of services…just in case.]
• Mandating conciliation or arbitration of claims.
[this would avoid finality and disclosure resulting from jury verdicts, and lower dollar amounts across the board – most settlements are far less costly than jury awards.]
• Providing that any damages that are awarded are actually used to help victims and prevent future harm, rather than intending punishment as the primary objective of awards....
[a different way of saying: "Eliminating punitive damages in cases involving charitable institutions."]