Opinion
Civil No. 01-1316-AS
December 19, 2001
FINDINGS AND RECOMMENDATION
The plaintiff in this action, designated as CB ("Plaintiff"), is a man who was once a parishioner of defendants the Archdiocese of Portland in Oregon and the Roman Catholic Archbishop of Portland in Oregon, a corporation sole, doing business as the Archdiocese of Portland in Oregon (collectively "Defendants"). Plaintiff alleges that Maurice Grammond, a Roman Catholic priest who, at all relevant times, was employed as a priest by Defendants, sexually abused him during the period of time he served as an altar boy. Plaintiff filed this action for sexual abuse of a child against defendant Grammond and for negligence and deceit/breach of fiduciary duty against Defendants in the Circuit Court of the State of Oregon for the County of Multnomah. Defendants removed the action to this court asserting that Plaintiff's complaint "creates crucial First Amendment issues arising from their allegations of a religious-based `breach of trust.'" Presently before the court is Plaintiffs' motion for remand pursuant to Fed.R.Civ.P. § 1447(c).
Plaintiff also seeks to remand this matter based on Defendants failure to timely remove the action. Because the court finds that it lacks subject matter jurisdiction over Plaintiff's claims and recommends remanding this matter, Plaintiff's alternative argument is moot and will not be addressed by the court.
PRELIMINARY PROCEDURAL MATTER
At oral argument, Plaintiff moved to strike the affidavits offered by Defendants in opposition to Plaintiff's motion to remand. Plaintiff argued that the court must limit its consideration of a motion to remand to the four corners of the complaint. The court did not rely on the information found in the affidavits in its decision on this matter. Accordingly, Plaintiff's oral motion to strike should be denied as moot.LEGAL STANDARD
Section 1447(c) provides, in part: "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c). Only cases that would have had original jurisdiction in a federal district court may be removed from state court. 28 U.S.C. § 1441(a). "Absent diversity of citizenship, federal-question jurisdiction is required." Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987). There is no diversity jurisdiction in this matter. Thus, the court must determine whether there is federal question jurisdiction over the parties dispute.
Federal courts have original federal question jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331, 1441(b). Normally, cases brought under the general federal question jurisdiction of the federal courts are those in which federal law creates the cause of action. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808 (1986). Federal courts have recognized, however, that a case may arise under federal law "where the vindication of a right under state law necessarily turned on some construction of federal law." Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1, 9 (1983).
It is clear that the question whether a claim "arises under" federal law must be determined by reference to the "well-pleaded complaint." Merrell Dow, 478 U.S. at 808. Federal question jurisdiction exists only if the federal question appears on the face of plaintiff's complaint; if not, original jurisdiction is lacking, even if the defense is based on federal law. Id.
DISCUSSION
Plaintiff seeks to establish direct liability for negligence and deceit/breach of fiduciary duty. Defendants contend that the resolution of these issues requires the court to review, interpret and consider the religious rules and canons of the Roman Catholic Church, which is barred by the First Amendment. Accordingly, Defendants argue that Plaintiff's complaint raises federal constitutional issues that must be addressed by a federal court.
While Defendants argue to the contrary, Plaintiff does not state a claim against Defendants for Grammond's sexual abuse of Plaintiff under the theory of respondeat superior.
Plaintiff does not dispute that the First Amendment limits the review of internal policies of a church by a secular court, that a federal constitutional issue is raised when the First Amendment is at issue or that this court has federal question jurisdiction over federal constitutional issues. Rather, Plaintiff contends that the issues of negligence, deceit and breach of fiduciary duty can be resolved without consideration of Defendants' canons or religious rules and that any federal question before the court is limited to Defendants' third affirmative defense.
The First Amendment of the United States Constitution, provides that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof * * *." Courts are similarly restricted in their consideration of issues involving religious organizations or doctrine. Generally, courts may not interpret church laws, policies or practices in a manner that will limit the church's ability to fully practice its religion or be guided by its religious principles. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). However, this does not prevent courts from addressing church-related disputes, provided the court refrains from considering doctrinal matters and resolves the dispute solely on neutral principles. Jones v. Wolf, 443 U.S. 595, 604 (1989).
In an order granting a stay issued independently by him, Justice Rehnquist summarized the restriction imposed on courts by the First Amendment as follows:
There are constitutional limitations on the extent to which a civil court may inquire into and determine matters of ecclesiastical cognizance and polity in adjudicating intrachurch disputes. But the Court never has suggested that those constraints similarly apply outside the context of such intraorganization disputes. * * * [Some] cases are premised on a perceived danger that in resolving intrachurch disputes the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. Such considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religious affiliated organization, in which fraud, breach of contract, and statutory violations are alleged.
General Council v. Superior Court of California, 439 U.S. 1355, 1372-3 (1978). Courts may not, without justification, force religious bodies to abandon their religious beliefs or doctrines in favor of purely secular rules or rule on the appropriateness or correctness of those beliefs or doctrines. However, the mere consideration of religious authorities in an action involving the church and third parties does not necessarily amount to an infringement of the churches religious freedom. A court may look to such evidence to establish the basic purposes or policies of the religion as merely a guide to determining whether a plaintiff has a viable action against the church.
Justification would include enforcement of criminal laws or statutes which are religiously neutral.
Negligence
Plaintiff alleges that Defendants knew or should have known that Grammond was a pedophile, that he had previously sexually abused young altar boys and that he allowed and encouraged young boys to sleep in the Rectory. Plaintiff then alleges that:
The Archdiocese was negligent and breached its fiduciary duty to Plaintiff in one or more of the following ways that allowed the molestation of Plaintiff:
a. It assigned Grammond to our Lady of the Victory parish as a parish priest;
b. It allowed Grammond unrestricted access to boys in parishes of the Archdiocese;
c. It failed to notify its parishioners of Grammond's past sexual molestation of one or more boys;
d. It failed to adequately supervise Grammond; and
e. It failed to notify law enforcement or child protective authorities of Grammond's criminal conduct.
The law of negligence in Oregon is premised on the general foreseeability principle explained
in Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326, 1336 (1987): [U]nless the parties invoke a status, a relationship, or a particular standard of conduct that creates, defines, or limits the defendant's duty, the issue of liability for harm actually resulting from defendant's conduct properly depends on whether that conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.
Here Plaintiff appears to allege both a claim for common law negligence in the absence of a duty based on the foreseeability of the harm to Plaintiff, and a claim for breach of fiduciary duty based on allegations that Defendants' status or special relationship as his church or parish imposed a duty on them to protect Plaintiff from sexual abuse by Grammond.
Plaintiff need not rely on Defendants' canons to establish the existence of a special relationship and attendant duty owed by Defendants to Plaintiff, the foreseeability of the harm to Plaintiff or the actual harm suffered by Plaintiff. It is also clear without reference to any religious laws that an employer who has knowledge of an employee's predilection to sexually abuse young boys unreasonably creates a foreseeable risk by allowing the employee uninhibited access to young boys. The First Amendment concerns arise in this context only if Defendants intend to rely on their canons or other religious rules to establish that, under the circumstances before them, they acted in accordance with those canons or rules and, therefore, acted reasonably under the circumstances.
As noted above, the introduction of the First Amendment into a controversy solely by virtue of an affirmative defense does not support a finding of subject matter jurisdiction. This is not to say that the Defendants' First Amendment rights may not eventually have to be considered by the court when addressing the affirmative defense or that the secular court will have the authority to determine the religious issues raised by the defense. The court is stating only that the allegations of Plaintiff's complaint do not put at issue Defendants' canon or religious rules. The court finds that Plaintiff's second claim for relief for negligence does not implicate Defendant's First Amendment rights.
Deceit/Breach of Fiduciary Duty
In his Third Claim for Relief, Plaintiff alleges that:
At all relevant times, the Archdiocese knew that:
a. Pedophiles, including priests, who have molested one or more Altar Boys, are likely to generate numerous victims due to their compulsive sexual attraction to children;
b. Victims of sexual abuse by priests are unlikely to openly disclose the abuse or to seek counseling for the effects of the abuse until such time as the priest's Archbishop has acknowledged the priest's crimes and offered spiritual support to his victims;
c. Without such acknowledgment, the priest's victims will tend to believe that they were in some way responsible for the abuse; and
d. A victim is unlikely to heal from the damaging effects of the abuse until such time as he feels it is safe to openly disclose the abuse.
Since learning that Grammond had molested one or more Altar Boys, the Archdiocese, with the intent to keep that information from Plaintiff and other victims of Grammond's, concealed that information and has continuously breached its fiduciary duty to Plaintiff by failing to investigate whether additional boys had been victimized; failing to notify Altar Boys who had been supervised by Grammond, and/or their parents if they still were minors, that it was safe to disclose if they had been abused; and failing to publicly acknowledge Grammond's crimes.
The court has already discussed a claim for breach of fiduciary duty and found that such claim does not implicate First Amendment rights. The court likens Plaintiff's deceit claim to a claim for fraud or intentional misrepresentation.
In order to recover for fraud and/or intentional misrepresentation, a plaintiff must establish: (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) the speaker's intent that the representation should be acted upon by the listener in the manner reasonably contemplated; (6) the listener's ignorance of the representation's falsity; (7) the listener's reliance on the truth of the representation; (8) the listener's right to rely thereon; and (9) the listener's consequent and proximate injury. Webb v. Clark, 274 Or. 387, 391(1976) (elements for a fraud claim); Johnsen v. Mel-Ken Motors, Inc., 134 Or. App. 81, 89 (1995) (same elements for a claim of intentional misrepresentation). None of these elements require the court to consider Defendants' canons. They all address either the characteristics of the representation, the knowledge of the speaker or the effect on the listener, none of which implicate the church's religious rules. Plaintiff is able to establish a prima facie claim for deceit without relying on Defendants' policies or religious rules. In the absence of any constitutional issues, this court lacks jurisdiction over this action and it should be remanded to state court.
CONCLUSION
Plaintiff's motion (5) to remand should be GRANTED. Plaintiff's oral motion to strike Defendants' affidavits should be DENIED as moot.