Judge Stephen Dillard (John Disney/Staff)
A Fulton County judge was wrong to toss a young woman’s complaint raising sexual abuse allegations against the Archdiocese of Atlanta on the ground that the plaintiff filed the case under a pseudonym, the Georgia Court of Appeals has ruled.
The plaintiff’s suit accuses the archdiocese of negligence for failing to stop a former music minister at Holy Cross Catholic Church from sexually abusing her when she was 14. Last year, Fulton State Court Judge Patsy Porter ruled that the suit’s filing under the pseudonym “Jane Doe” rendered the complaint invalid and that it was too late for the plaintiff to amend it to include her name.
Tuesday’s ruling by the Court of Appeals said Porter erred in dismissing the case, noting that the plaintiff had revealed her true identity to both the church and the trial judge. Judge Stephen Dillard wrote for a three-judge panel that Porter has the discretion to require the plaintiff to proceed in her own name. But if the judge continues to make that requirement, wrote Dillard, the judge must allow the plaintiff to amend her complaint to add her name, not dismiss the case.
The lawsuit was filed by Atlanta attorney Don Keenan and a Florida firm, although Keenan has said his firm was local counsel only. Matthew Nasrallah of the Marietta firm Robertson, Bodoh & Nasrallah said he was brought in for the appeal and will be handling the case for the plaintiff with Florida lawyer Arick Fudali.
Nasrallah said the plaintiff’s lawyers will argue to Porter that their client should be able to proceed anonymously but will amend the complaint if she says no. “We’re going forward … whether we’ve got to go under a pseudonym or not,” said Nasrallah.
He said his practice had been to seek the permission from the court before filing a case under a pseudonym, out of an abundance of caution given the lack of law on the subject. “It does not speak well to the archdiocese in my opinion in forcing this issue,” he added. “It’s just poor form.”
Stephen Forte of Smith, Gambrell & Russell, who is defending the case along with his partner Dana Richens, said in an email that the archdiocese “is evaluating the opinion of the court and reviewing its options.”
Doe, now in her mid-20s, claims that she was molested by former Holy Cross music minister Paul Berrell. He is currently serving a 28-year sentence in federal prison in North Carolina on child pornography charges. He also was convicted there on state charges of statutory rape and sexual exploitation of a minor, but a state Department of Corrections website indicates that those charges later were vacated.
Filed in 2012, Doe’s lawsuit contends that when the church learned Berrell was having inappropriate contact with young girls and had molested another girl, Berrell was terminated—but neither parents nor law enforcement were notified.
The archdiocese and Holy Cross asked Porter to dismiss the case, arguing that Georgia law requires the title of a civil suit to include the names of all parties and thus Doe’s suit was a “nullity” and subject to dismissal at any time.
The plaintiff could not fix the problem by filing a new complaint using her real name because the statute of limitations deadline has passed between the time the original complaint was filed and the time of the defense motion, the church and the archdiocese argued. They said the result was the plaintiff’s fault given that she had waited until just weeks before the statute of limitations was to run before filing her suit.
Porter agreed, saying the Jane Doe pseudonym “does not name a particular person and there is no current Georgia case law in regards to whether a pseudonym can be used to afford a party confidentiality when they are a victim of sexual abuse.” Porter said because the plaintiff failed to identify herself initially, her lawsuit essentially never existed, and so it could not have acted to beat the statute of limitations clock.
A panel of Dillard and Judges Sara Doyle and M. Yvette Miller reversed that ruling. Dillard wrote that the plaintiff’s lawsuit was not a nullity, although Porter had discretion to require the plaintiff to amend the complaint so as to reveal her identity. He said accepting the archdiocese’s argument that filing a lawsuit under a pseudonym is never allowed in Georgia would place Georgia outside the mainstream of American law, adding that both his court and the state Supreme Court have ruled in lawsuits brought by a plaintiff using a pseudonym.
“Significantly, Doe revealed her identity to both the trial court and the Church prior to the expiration of the statute of limitations,” wrote Dillard. “And for this reason, we reject the Church’s overly rigid argument that, because Doe was not publicly identified, her complaint failed to import a natural person and should be treated as a nullity (i.e., as though Doe did not exist).
“Doe is indeed a natural person; it is only her name that is (at least temporarily) being shielded from public disclosure. But neither the trial court nor the Church were left wondering as to who was asserting these claims, nor was either misled or deceived in any way. Under these circumstances, there is no injustice in allowing Doe’s lawsuit to remain pending and, to the extent that the trial court deems it necessary to do so … in permitting her to amend the complaint.”
Dillard acknowledged the First Amendment concerns of restricting public scrutiny of court proceedings but said that “in extraordinary cases” trial judges may use their discretion to allow a plaintiff to proceed anonymously. Sending the case back to Porter so that she can exercise that discretion, Dillard listed several factors to be considered in an individual case.
He quoted a U.S. Court of Appeals for the Eleventh Circuit decision to the effect that the “ultimate test is whether the plaintiff has a ‘substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings.’” Dillard noted that several state and federal courts around the country have found that plaintiffs bringing claims based on allegations of childhood sexual abuse may litigate using a pseudonym.
The case is Doe v. Archdiocese of Atlanta, No. A14A0603.