By PATRICIA LEFEVERE
Special Report Writer
Newark, N.J.

In the old days a guardian angel or a St. Christopher medal might have been sufficient protection from trouble. But in the adversarial atmosphere and litigious climate that has swept America today, every Catholic church, school, religious order, diocese, hospital and agency needs a lawyer.

Preferably a nimble lawyer. Churches have been targets of lawsuits related to a wide range of issues, including employment, personal injury, treatment of the sick and dying and, most notoriously, sexual misconduct.

In a program titled “Avoiding the Pitfalls of Church-related Work,” lawyers for the St. Louis, Philadelphia and Newark archdioceses addressed some 40 priests, nuns and lay persons serving the church in New Jersey, New York and Indiana in a daylong program April 16. It was held at Seton Hall University’s School of Law here in Newark.

Catholic enterprises need to be well-advised in an environment where anyone can sue anyone over just about anything, Fr. Robert S. Meyer told NCR. Meyer, a canon lawyer and a third-year law student at Seton Hall, cochaired the event.

Msgr. Alan J. Placa, a lawyer and corporate secretary of Catholic Health Services of Long Island for the of Rockville Centre, N.Y., diocese, noted that the nature of the crisis of sexual misconduct “has changed radically” over the past five years. Placa has consulted on almost 300 sex abuse cases across the nation.

When confronted with such allegations, too many churchmen “try to imitate Perry Mason rather than Jesus Christ,” he said. “Preventing litigation should not be foremost in our minds.”

Several states’ courts have allowed civil suits to be brought decades after the alleged deeds occurred on the theory that the statute-of-limitations clock should start when the potential plaintiff recognizes the harm done. Clinicians have testified that child sexual abuse victims often repress the events for years.

“There are very few current charges,” Placa said, but numerous cases that date back 30 or 40 years. “Sometimes the alleged priest offender has already died,” he said.

Placa cautioned that churches should always respond pastorally when victims come forth.

While each diocese must set its own procedures for such cases, Placa emphasized the need to analyze the complaint and pursue a full investigation. He advised conducting the evaluation in a non-church setting. If the complaint involves a child, the alleged perpetrator should be removed from his assignment at once, he said.

In counseling adults, the priest questioned whether a “consenting adult” defense is permissible. “That person is coming to you, trusting in you, because you represent the church,” he said.

Many bishops and priests disagree with Placa’s call for the immediate removal of the accused from his assignment, arguing for the presumption of innocence. But Placa is adamant. “We’ve got to weigh prudentially and pastorally the outcome of an evaluation. Our policy is to promote the well-being of children in our care and to promote church teaching on morality and chastity.”

He urged those in charge of parishes, schools and youth groups to know state laws on reporting sexual abuse allegations; to understand the difference between the obligation of confidentiality and the seal of confession; to publicize the church’s policy on sexual abuse but not its procedures; to search out other victims of abuse if they exist; and to utilize the healing arts that are part of the priestly profession;

End-of-life issues

A widening legal arena surrounds end-of-life issues for people who are chronically and terminally ill. States have enacted laws that give legal recognition to “living wills” -- instruction directives and proxy directives -- yet people are not required to have them.

Kathleen M. Boozang urged pastors to help their congregants with these emotional and troubling issues. Boozang, cochair of the conference, directs the Health Law & Policy Program and the law school’s graduate programs.

Priests can help people determine ahead of time what kind of death they want and how they feel about painkillers, particularly those that could hasten death, she said.

She noted that hospitals are establishing “futility” policies that allow doctors to act unilaterally when they determine that there’s no chance of survival or that a procedure is not working. Having an advance directive for a patient “can help to alleviate the guilt of families, even of nurses,” when they believe that a higher dose of pain killers has in fact speeded death, she said.

Boozang and Meyer cited critical cases involving do not resuscitate orders, organ donation, withdrawal of nutrition and hydration and ongoing neonatal care for an infant who has severe developmental disabilities. Neither the patient nor the family should be rushed into making a critical decision by a doctor or anyone else, Boozang said. “Treatment to save a life can always be invoked and then withdrawn.”

Participants received more than 100 pages of documents related to diverse areas of the law and on Catholic social teaching.

Lawyer Joseph Maddaloni of Newark reviewed cases of labor and discrimination laws relevant to the church as employer. Many involved collective bargaining and lay teachers -- an issue that has prompted strikes in some Catholic elementary and high schools in recent years. A general principle of the law is that “courts will find a means to protect workers if workers need protection,” he said.

If an employer wants to rely on canon law, he has to spell out the canon expressly in the employment contract, Maddaloni said. “The best course of action is to be specific.”

In state and federal courts, judges apply the “ministerial function” test to cases involving religious employers, he said. Ministerial function is determined by what an employee does, not by whether he or she is a member of a religious order. If it is determined that an employee functions as a minister, the employment dispute cannot be resolved in the courts because the practice of religion is protected by the First Amendment, he said.

Lawyer Mary Beth Ortbals advised church employers to keep a paper trail of employees, beginning with the job application, interview notes and thoroughly checked references. Every employee should receive a handbook that includes the agency’s anti-harrassment policy, she added.

Ortbals, an expert in employment discrimination law who has represented the St. Louis archdiocese, orders of religious women and Catholic health care groups in St. Louis, cautioned against making any “anti-age” comments in the workplace. “We need some young blood here,” is a remark that could be used in a lawsuit, Ortbals said. The Age Discrimination in Employment Act of 1967 applies to anyone 40 years of age or older and to employers with 20 or more employees.

As for the Family and Medical Leave Act of 1994, Ortbals called it “the most onerous law to follow and apply that has come down in 50 years.” Under certain conditions, it secures an employee’s position and grants up to 12 weeks of unpaid leave per year for the care of a spouse, family member or oneself in the case of a serious medical condition or for the birth or adoption of a child or the placement of a foster child. Catholic schools and other institutions with fewer than 50 employees are subject to the law if a teacher’s contract is signed by the diocese and the diocese is considered the employer, she said.

If Catholic parishes and schools need a lawyer, they also need legal advice about insuring not only their property and motor vehicles, but also their employees and service providers, said William Cambria, counsel for the Newark archdiocese. They also need a comprehensive general liability policy that will protect them from being bankrupted by a single claim, he said. “Sidewalk suits” have overtaken bingo hall and school playground claims, he said. Malpractice insurance may also be required in the case of pastoral counseling, he added.

No matter how vigilant a pastor or principal is, he or she may still face a lawsuit, said Timothy Coyne, who represents the Philadelphia archdiocese and various religious orders. “The little old lady who says her beads daily in church will sue you if she slips and falls in church,” he warned. Coyne told priests to regard lawyers as their friends and to “call your lawyer even before you call the chancery or your insurer.”

National Catholic Reporter, May 7, 1999

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