Professor Marci A. Hamilton, Child Sex Abuse, Timothy Cardinal Dolan and Me, Hamilton and Griffin on Rights

Timothy Cardinal Dolan did not have a good week last week, as the United States Court of Appeals for the Seventh Circuit issued a monumental ruling on religious liberty and fraud in the Milwaukee Archdiocese bankruptcy. I briefed and argued the religious liberty issues before the Bankruptcy Court, the District Court, and the Circuit Court, and will delve into the legal arguments later this week for my column. For this RFRA Diary entry, however, I will describe the battle that he and I have been waging from opposite sides of the clergy sex abuse war for over a decade, with this new opinion being the most recent event.

The Battle Is Joined

Not long after the Boston Globe’s revealing investigative reporting about the cover-up of clergy sex abuse by Catholic bishops, in January 2002, Dolan and I took public positions that would require us to square off. When the clergy sex abuse crisis hit, my specialty was already religious liberty for believers and organizations who break the law, and the crisis literally fell into my lap. My first column on the clergy sex abuse crisis appeared on May 23, 2002, with a follow-up on June 6, 2002.

Dolan was named the Archbishop of Milwaukee on June 25, 2002, where he served until 2009.

The Short Statutes of Limitations for Sex Abuse Survivors

At the same time that the stories began to pile up about Catholic priests sexually abusing children, it also became increasingly clear that victims were not going to be able to get justice, because they were blocked by short statutes of limitations (“SOLs”) in so many states. Thus, the shock about the disclosures was compounded by the inefficacy of the legal system to right the wrongs.

The first state to create more access to justice for victims was California, which enacted a one-year “window” permitting victims during 2003 to sue perpetrators and their employers for damages—even if their SOL had expired. (They tried as well to revive the criminal SOLs, but the Supreme Court held the criminal revival unconstitutional in Stogner v. California.). Given the 35 million people in California at the time, the roughly 850 Catholic victims who invoked the window constituted a small pool, but their cases forced the bishops’ secrets in one diocese after another into the public square. Ultimately, California dioceses settled with all of the victims for $1.3 million per victim on average and an agreement to release their files to the public.

The Wisconsin law limited survivors to a mere two years after the age of majority, and so they asked legislators to enact a law similar to California’s, but did not succeed. I testified in favor of the Wisconsin bill, which extended the SOL for future victims to age 35. But the bill was also severely deficient, because it did not revive any expired claims. In that era, early in his Milwaukee tenure, Dolan did not personally testify against the bill, leaving it to the Catholic Conference. He didn’t need to, obviously.

The Wisconsin Supreme Court Creates a Small Opening for Survivors to Enter Court      

While Dolan was Archbishop, I briefed and argued three cases against the Milwaukee Archdiocese before the Wisconsin Supreme Court. A primary goal was to persuade the court to reverse its misguided opinion in Pritzlaff v. Archdiocese of Milwaukee. That case held that the Church had a First Amendment right to avoid liability in a case involving sex between a woman and a priest. The reasoning was later extended to the child sex abuse cases and, therefore, had shut down victims’ pursuit of justice regardless of the SOL. It is a twisted and indefensible reading of the First Amendment, but Dolan embraced it during his tenure.

The first case I argued was John Doe 67C v. Milwaukee Archdiocese in 2005. Dolan won that one. The survivor was bringing a claim decades after the abuse, and the Court ruled that he was well outside the SOL on every available theory, and left intact its First Amendment theory.

The second case was John Doe 1 v. Milwaukee Archdiocese in 2007. I won that one.   In that case, the Wisconsin Supreme Court again did not touch the Pritzlaff ruling, but this time it was because the Archdiocese dropped the First Amendment argument at the Supreme Court, presumably to avoid having it overruled. The court, however, did create a small opening for sex abuse cases in which the Archdiocese fraudulently concealed its knowledge of an abusing priest. In those cases, the victim would have until 6 years after discovering the fraudulent concealment. If there were ever a case to announce a theory of fraudulent concealment, this was the one, because it involved the notorious Fr. Widera. (The third case takes us far afield, so I will not pursue it here.)

Thus, a small opportunity presented itself, and a handful of clergy abuse survivors’ claims stayed alive in the Wisconsin courts starting in 2007. Still, the vast majority of cases were shut down.

Dolan’s One-on-One Negotiations with Survivors

Dolan was not adverse to using money to make both survivors and pedophiles go away. He willingly entered into a public dialogue about the abuse scandal and invited survivors to come speak to him. This was a calculated tactic intended, in hindsight, to remove as many victims as possible from the pool of those who might be able to bring a claim if SOL reform ever happened. He negotiated deals with 170 survivors for a total of about $10.2 million, which breaks down to roughly $58,000.00 per survivor, a far cry from the average compensation received in California where victims had live legal claims. He also paid some accused priests $20,000 to disappear.

The Battle Over SOLs

Then I was invited by the Jesuit Magazine, America, to write about my views on what the clergy abuse crisis had taught us. I gladly accepted. In a nutshell, I argued that what we had learned for sure between 2002 and 2006 was that the vast majority of victims were being blocked from court, and justice simply was not being done.

Therefore, SOL reform was in order. I would go on to publish Justice Denied: What America Must Do to Protect Its Children the next year, which elaborated on my thesis that SOL reform is a bare minimum to achieving justice for child sex abuse victims and to identify hidden child predators, including those in the church.

A year after Justice Denied was published, in 2008, a bill to create a 3-year window and to eliminate the civil SOL was introduced in the Wisconsin legislature. The bishops had managed to kill previous bills, but this one gained momentum, obtaining broad support. Delaware had enacted a 2-year window in 2007, and it was beginning to appear that this was the model for the future. I flew out to testify in favor.

To my amazement, the Archbishop himself sailed into the hearing. His charisma in that room was undeniable, and the chairperson insisted that he be put first in line to testify. And testify he did. With great sincerity and good cheer, he informed the Committee that if victims were permitted to go to court regardless of the SOL, well, the Archdiocese would go bankrupt, saying: “There is no Catholic Superfund that can provide the monies this legislation will require of the church.”

After he completed his testimony, which was devastating to our side, he walked directly across the room toward me. We had never met before, but we knew each other well enough by then. He started by saying, with a smile, “You’re that woman.” I wasn’t sure where he was headed with this so I simply stayed seated and smiled up at him, to hear him say, “I told them not to publish that article,” apparently referring to my article in America. He has told others in the interim that he was joshing me, which is fair enough. But at the time, it felt like a warning.

The bill died in committee, and its overall momentum screeched to a halt.

The Archdiocese’s “Superfund” in a Trust

As it turned out, Dolan was actually misleading the committee that day, because he did have a “Superfund” of $55 million that could have assisted with victims’ claims, In 2007, he had asked the Vatican for permission to move funds so as to create a Cemetery Trust and received approval a few weeks after John Doe 1 came down.

Why did Dolan suddenly need to move money into a “trust” in 2007? As he explained to the Vatican, the Trust was needed to provide “an improved protection of these funds from any legal claim and liability.” In other words, he was seeking to keep the money from the victims, whether they prevailed through the new narrow fraudulent concealment theory of John Doe I or SOL legislative reform.

Dolan’s Legacy in Milwaukee and Its Bankruptcy

Dolan was promoted to the New York City Archdiocese in 2009, but his legacy of scorched earth legal tactics and keeping victims out of court lived on. Two years after he left, the Archdiocese filed bankruptcy in the face of a small number of pending lawsuits. As part of such a process, dioceses typically attempt to flush out as many survivors as possible, on the theory that they can walk away from a bankruptcy without having to ever look over their shoulder again. The few Milwaukee cases metastasized into a class of over 500 survivors, the vast majority of which were out of statute, but were drawn into the bankruptcy with promises of assistance from Dolan’s successor Archbishop Listecki.

Dolan had created the conditions for this ungainly bankruptcy. He had moved the vast majority of the Archdiocese’s assets into a trust, thereby radically reducing the size of the estate that might be able to compensate the victims and set a tone of legal brinksmanship in which no theory is too outlandish so long as it delays justice for the victims.

The most far-fetched theory of all was yet another twisted religious liberty theory. When the committee of creditors argued that the Cemetery Trust had been fraudulently created to avoid the Archdiocese’s obligations, the Archdiocese self-righteously responded that the First Amendment and the Religious Freedom Restoration Act shielded it from the bankruptcy laws that forbid fraudulently transferring funds in preparation of a bankruptcy to cheat creditors.

In other words, the Archdiocese argued for a religious right to fraudulently conceal assets preceding a bankruptcy.   That’s one of those heads-I-win, tails-you-lose arguments. The Seventh Circuit would have none of it.

As I will explain in my column later this week, I briefed and argued those issues, and the Archdiocese lost.   It turns out there is no religious liberty for fraud. God Bless America.

Dolan in New York 

Dolan has continued his campaign against real justice for the victims of clergy sex abuse in New York. This state is one of the five worst in the United States for child sex abuse victims’ access to justice. It shares this honor with Alabama, Georgia, Mississippi, and Michigan. Since 2003, and year after year, Assemblywoman Marge Markey has introduced the Child Victims Act, which contains a one-year window and is intended not only to assist the victims but also to identify the hidden child predators in New York. I and numerous New York survivors have testified repeatedly, met with countless legislators and Governor Cuomo’s Office, and made the case across the media, but no progress has been made. There is significantly more happening in Utah and Georgia to benefit survivors than in New York!

Dolan has led the charge against New York’s survivors by hiring high-priced lobbyists and twisting legislators’ arms with stories like those in Milwaukee, e.g., that they will go “bankrupt” if their secrets are disclosed through litigation. The recently-deceased Cardinal Egan fought the victims before Dolan arrived, and Dolan is continuing Egan’s and his own Milwaukee tradition of ensuring that as few victims as possible are compensated for the harm the dioceses did to them.   Dolan has been shameless in demanding that legislators defer to him on, of all things, child sex abuse.

A certain Seventh Circuit opinion, however, may well make him toxic in the legislative process when it comes to the protection of children.