Opinion
Civil No. 01-1437-AS
February 11, 2002
AMENDED FINDINGS AND RECOMMENDATION
This Findings and Recommendation was amended solely to take into account the court's granting of Plaintiff's motion to strike specific allegations which implicated First Amendment rights and created federal subject matter jurisdiction over the action. The references to these allegations, which were found in paragraphs 20 H) and 24 C)have been removed.
The plaintiff in this action, designated as GB ("Plaintiff"), attended All Saints School in Portland, Oregon. Defendants, All Saints Parish and All Saints School, were a Catholic church, parish, and school 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 Thomas Laughlin, a Diocesan priest who, at all relevant times, was employed as a priest by Defendants, sexually abused him during the period of time he attended All Saints served as an altar boy. Plaintiff filed this action for sexual abuse of a child/respondeat superior, negligence/breach of fiduciary duty and fraud 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).
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 vicarious liability against Defendants for Laughlin's sexual abuse of Plaintiff under the theory of respondeat superior, in addition to direct liability for negligence, breach of fiduciary duty and fraud. 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.
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 vicarious liability, negligence, breach of fiduciary duty and fraud 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.
Respondeat Superior
In order to resolve the question of vicarious liability, the court must first examine the parameters of the respondeat superior liability alleged in Plaintiff's complaint. "Under the doctrine of respondeat superior, an employer is liable for the torts of his employee when the employee is acting within the scope of his employment." Stanfield v. Laccoarce, 284 Or. 651, 654 (1978). In determining whether an employee was acting within the course and scope of his employment, the court applies a three-part test:
(1) [W]hether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the employee was hired to perform.
Chesterman v. Barmon, 305 Or. 439, 442 (1988).
Generally, an employer will not be held liable for the intentional criminal acts of its employees as these acts are not committed for the benefit of the employer. However, the Oregon Supreme Court has expanded the doctrine of respondeat superior to include the intentional criminal acts of employees if the acts that lead to the criminal conduct were within the scope of employment. In Chesterman, an employee ingested a hallucinatory drug while on the job to enable him to better focus his attention of work. While under the influence of the drug, the employee broke into the plaintiffs house and sexually assaulted her. The court recognized that the sexual assault itself was outside the scope of employment but reasoned that the appropriate inquiry was whether acts which contributed to the sexual assault were for the benefit of the employer. Id. at 444.
In Fearing v. Bucher, 328 Or. 367 (1999), the Oregon Supreme Court applied this reasoning to an action similar to the one before the court. The plaintiff, a man who had been ministered to in his youth by the defendant, a catholic priest, was sexually abused by the defendant. The complaint alleged that the defendant used his position as a youth pastor, spiritual guide, confessor and priest to get close to plaintiff and his family allowing him to spend a lot of time alone with the plaintiff and that these activities were conducted in connection with his employment with the church. Id. at 374.
The court held that the allegations were sufficient to "infer that the sexual assaults were the culmination of a progressive series of actions that began with and continued to involve [defendant's] performance of the ordinary and authorized duties of a priest" and that "in cultivating a relationship with plaintiff and his family, [defendant], at least initially, was motivated by a desire to fulfill his priestly duties and that, over time, his motives became mixed." Id. at 375.
These cases make it clear that the court must know the limits of the employees job duties in order to determine whether he was acting in furtherance of those duties during the relevant period. Accordingly, the court will be required to learn the limits of Laughlin's job duties as a priest for Defendants in order to determine whether the actions Plaintiff alleges he engaged in were within the parameters of his employment.
Plaintiff alleges that Defendants "empowered Father Laughlin to perform all duties of a priest, including pastoral and religious services, education, spiritual, moral and ethical guidance, religious
instruction, altar boy training, guidance and other duties of a parish priest." Plaintiff then alleges that: Father Laughlin did select plaintiff to serve as an altar boy or in other special capacities. For the purpose of furthering his assigned duties as a priest, Father Laughlin befriended plaintiff; gained his trust and confidence as a spiritual guide and as a valuable and trustworthy mentor to plaintiff; gained the support, acquiescence and permission of plaintiff's family to spend substantial periods of time alone with the plaintiff; and sought and gained the parents' authority that the plaintiff was to have respect for Father Laughlin's authority, guidance and to comply with his instructions and requests. * * *
For the purpose of furthering Father Laughlin's duties as a priest, he also sought and gained the trust, friendship, admiration and obedience of plaintiff in this case. As a result, the plaintiff was conditioned to comply with Father Laughlin's direction and to view and respect him as a person of authority in spiritual, moral and ethical matters.
Father Laughlin, while acting within the course and scope of his employment and agency, and using the authority and position of trust as a priest for the Archdiocese and All Saints, through grooming, induced and directed plaintiff to engage in various sexual acts with him.
Finally, Plaintiff alleges that:
Father Laughlin's grooming was committed in direct connection and for the purposes of fulfilling Father Laughlin's employment and agency with the Archdiocese and All Saints; was committed within the time and space limits of his employment and agency as a priest; was done directly in the performance of his duties as parish priest; generally consisted of actions of a kind and nature which Father Laughlin was required to perform as a priest; and was done at the direction of, and pursuant to, the power vested in him by the Archdiocese and All Saints.
The daily activities of a priest are generally known to his parishioners as a result of their relationship with him and with the church. However, it is impossible to know what acts the church has specifically authorized and directed the priest to engage in simply by watching the priest's routine. One must look more deeply into the relationship between the church and the priest to differentiate between those acts required by the job and those engaged in independently by the priest.
As with any employer-employee relationship, the parameters of a priest's duties can be discerned by reviewing the "job description" of the priest, in addition to communications between the church and the priest. While this will require the court to consider a number of Defendants' canons delineating the duties of a priest, the court will not need to make any judgment on appropriateness, correctness or validity of any of the canons. The canons will merely define the duties of a priest and the court will then consider whether Laughlin's acts of "grooming" fall within this definition. The court will not in any matter limit the priest's duties or the ability of the church to supervise Laughlin. Accordingly, the consideration by the court of Defendants' canons, or other religious rules, will not infringe in any way upon Defendants' freedom of religion and will not implicate the First Amendment.
Negligence/Breach of Fiduciary Duty
Plaintiff alleges that Defendants had been "informed, through numerous reports, that Father Laughlin had engaged in acts of sexual abuse previous to the abuse of Plaintiff" and that Defendants "knew or reasonably should have known that Father Laughlin had a deviant sexual interest in adolescent and teenage boys and was, or would be, unable to control that deviant interest." Plaintiff then alleges that:
The Archdiocese was negligent and breached its fiduciary duty to plaintiff in one or more of the following particulars:
A) The Archdiocese allowed Father Laughlin to remain as parish priest even after they knew or should have known of his propensities to use his position as a priest to engage in acts of sexual abuse;
B) The Archdiocese allowed Father Laughlin to supervise adolescent and teenage boys in his position as parish priest when they knew or should have known of his propensities to use his position as a priest to engage in acts of sexual abuse;
C) The Archdiocese allowed Father Laughlin to have adolescent and teenage boys private time with him at All Saints Parish;
D) The Archdiocese, after receiving numerous complaints and reports about Father Laughlin using his position as a priest to engage in sexual abuse of boys, failed to report the sexual abuse to law enforcement or to otherwise remove him from his position;
E) The Archdiocese failed to undertake a sexual offender evaluation, provide sexual offender treatment and/or obtain psychiatric evaluation and treatment of Father Laughlin after they knew, or should have known, of his propensities to use his position as a priest to engage in acts of sexual abuse;
F) The Archdiocese failed to properly supervise Father Laughlin as a priest or to monitor his activities after they knew or should have known of his propensities to use his position as a priest to engage in acts of sexual abuse.
G) The Archdiocese failed to notify the parents, students, and parishioners of All Saints after they knew or should have known of Father Laughlin's propensities to use his position as priest to engage in acts of sexual abuse.
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 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, parish or school imposed a duty on them to protect Plaintiff from sexual abuse by Laughlin.
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/breach of fiduciary duty does not implicate Defendant's First Amendment rights.
Fraud/Misrepresentation
In his Third Claim for Relief, Plaintiff alleges that:
At all relevant times, the Archdiocese knew that:
A) A priest who had previously engaged in acts of sexual abuse of teenage boys was likely to have had other victims and that such a priest may be a pedophile with numerous victims and a compulsive sexual attractions to boys;
B) Victims of sexual abuse by priests are unlikely to disclose the abuse, or to seek counseling for the effects of the abuse because of the shame and guilt associated with such abuse;
D) With[out] such acknowledgment, the priest's victims will tend to believe they were in some way responsible for the abuse; and
E) 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.
Although the Archdiocese knew or reasonably should have know that Father Laughlin had and would use his position as a priest to groom and molest boys, the Archdiocese, with the intent to keep the information from its parishioners, plaintiff in this lawsuit, and other potential victims of Father Laughlin, directly concealed that information * * *; failed to notify boys who had been supervised by Father Laughlin, and/or their parents if they still were minors, that it was safe to disclose if they had been abused; and failed to publicly acknowledge Father Laughlin's abuse or otherwise publish and disclose that boys in the parish were at risk of being sexually abused by Father Laughlin.
* * *
The Archdiocese's actions constituted a material misrepresentation and concealment of material fact that the Archdiocese knew to be false with the intent that it be relied upon to further Father Laughlin's position as a priest, the plaintiff and his family were ignorant of the falsity of the misrepresentation and concealment. Plaintiff had a right to rely on the Archdiocese, which he did, and suffered damages * * *.
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.