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Diocese abuse case can go forward

Posted July 07, 2009, at 8:44 p.m.

PORTLAND, Maine — The Maine Supreme Judicial Court ruled Tuesday that the head of the Roman Catholic Diocese of Portland is not immune from being sued by an Augusta man who alleges he was molested as a boy after the diocese assigned a priest it knew had sexually abused children in the past to a parish in the state capital.

In a 5-2 ruling, the court affirmed that under current law charitable groups such as churches, museums and sports organizations are immune from claims for negligent actions, but it said they are not immune from intentional ones.

The impact of the court’s ruling will be felt by every nonprofit organization in the state, a dissenting justice predicted.

The state’s high court sent back to Kennebec County Superior Court the question of whether the bishop of the diocese knew that the Rev. Raymond Melville had a history of sexually abusing minors when in 1985 he was assigned to St. Mary Catholic Church and School in Augusta.

William Picher, 35, claims that Melville, who left the ministry in 1997 and now reportedly lives in Lucien, Okla., sexually assaulted him between 1986 and 1988 when Picher was a student at the school. Picher (pronounced pee-SHAY) also alleges that Melville’s supervisors at the Roman Catholic Diocese of Portland knew the priest had sexually abused children previously but hid allegations from parishioners.

The diocese has denied the claim, arguing that it did not receive its first complaint about Melville until 1990. The priest also served in parishes in Lewiston, Rumford and Machias.

Justice Donald Alexander said in his dissent that the court’s decision effectively eliminates the doctrine of charitable immunity in Maine. He also accused his fellow jurists of invading the province of the Legislature and failing to respect the separation of powers clause in the Maine Constitution.

“The result of the court’s action today,” Alexander wrote, “is that any charitable institution may be hauled into court and forced to expend its resources to defend a suit through trial any time a plaintiff pleads some intentional act or failure to act as part of its cause of action.”

The court’s decision, Alexander found, would put small charitable organizations such as granges, art museums, Little League teams and churches at risk of being bankrupted by legal fees when allegations are made, whether they can be proven or not.

“These organizations,” he wrote, “serve the communities without facing the Hobson’s choice of shutting down because they cannot afford the cost of insurance or remaining open to face the risk of lawsuits, which, even if successfully defended, may cost more than the organization can afford.”

Justice Robert Clifford joined in the dissent. Justices Jon Levy, Warren Silver, Andrew Mead and Ellen Gorman joined Chief Justice Leigh I. Saufley in the majority opinion, which was written by Silver. Saufley and Levy issued a concurring opinion, which focused on the nature of the accusation.

Warren said that the Maine Supreme Court was one of the few in the nation that had not ruled on the question of whether a defense of charitable immunity could be asserted in claims involving intentional acts.

“Applying charitable immunity in claims involving intentional torts” — that is, wrongful acts — “would set Maine so far outside the mainstream that it would put this state in a class by itself,” he wrote. “We do not believe it advisable to expand so profoundly a doctrine that has generally been acknowledged as bankrupt” by courts in other states.

In her concurrence, Saufley wrote: “The question is this: Did the Maine Legislature, when it used the phrase ‘any other tort’ in enacting [the law] intend to expand the existing common law doctrine of charitable immunity to such an extent that it immunizes a charity from liability when the charity, whether it is a local grange or an international religious organization, engages in the intentional or surreptitious placement of a known pedophile in a position of power over vulnerable children[?]”

Saufley and Levy concluded that the Legislature did not intend that result.

Picher sued Melville, Bishop Richard Malone and the diocese four years ago over the alleged abuse. The bishop and the diocese were dismissed from the lawsuit in December 2007 in a summary judgment order. In January 2008, Picher was awarded $4.2 million in a default judgment in his complaint against Melville, who did not respond to the lawsuit.

Attorneys for Picher appealed the decision over the dismissal of the bishop and the diocese to the state supreme court. Justices heard oral arguments on Sept. 16 in Portland.

“We respect the decision of court,” Gerald Petrucelli, the Portland lawyer who represents the diocese, said Tuesday, “but we think the dissenting opinion is a better decision.”

He also said that Picher’s allegations against the diocese would be proved to be untrue.

Picher’s attorney, Keith Varner of Augusta, agreed with the dissenting justices on one point.

“This decision has implication beyond just clergy abuse cases,” he said. “Any nonprofit now can be held responsible for intentional acts.”

The Survivors Network of those Abused by Priests praised the court’s decision in a press release issued late Tuesday.

“In criminal courts, civil courts and the court of public opinion, Catholic bishops keep trying to portray their deliberately deceptive and intentional cover-ups as ‘unforeseeable’ or innocent mistakes,” spokeswoman Barbara Dorris of St. Louis said. “That’s disingenuous and we’re thankful the Maine Supreme Court apparently agrees.

“Insurance policies cover unavoidable accidents, not conscious criminal cover-ups,” she continued. “The law protects nonprofits that make mistakes, not institutions that deliberately shun victims, endanger kids, deceive parishioners, mislead police and stonewall prosecutors.”

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