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A federal judge in Oregon is the first to rule that the Holy See in Rome could be held accountable in U.S. courts for Roman Catholic clergymen who allegedly sexually abused youths in their charge. Lawyers for a John Doe plaintiff in Seattle who alleges that a priest abused him as a teenager in the mid-1960s have applauded the June 7 ruling by U.S. District Judge Michael W. Mosman. He found that the court can hear the case based on the tortious activity exception to the Foreign Sovereign Immunity Act (FSIA). Doe v. Holy See, No. 02-cv-430 (D. Ore.). This exception allows an American court to take jurisdiction over a foreign state, ordinarily immune from suit in U.S. courts, in cases where money damages are sought for a personal injury allegedly caused by that state or its employee’s tortious act or omission occurring in the United States. Jeffrey R. Anderson of Jeff Anderson & Associates in St. Paul, Minn., a lawyer for the plaintiff who has been involved in clergy abuse litigation nationwide for two decades, asserted that his team is the first “to break the Vatican’s . . . formerly impenetrable curtain. “The Holy See has never been held to account in a court in the U.S. for a role in the clergy sex abuse scandal, and to my knowledge hasn’t even been successfully sued in the U.S. So the ruling of the trial court denying the motion to dismiss, conferring subject-matter jurisdiction, is an enormous breakthrough for us.” But the defense, which already has appealed the ruling to the 9th U.S. Circuit Court of Appeals, notes that the case is in its early stages, that it is not unusual for American courts to take jurisdiction over foreign sovereigns generally, and that it does not expect the Holy See to be a defendant if the case survives. Jeffrey S. Lena, a Berkeley, Calif.-based solo practitioner who represents the Holy See, pointed out that “the court has not taken jurisdiction-it just has not excluded the possibility that there may be a basis for jurisdiction in law. “The plaintiffs have at best merely survived to attempt to establish jurisdiction another day, and now the case is on appeal,” Lena said. William F. McMurry of William F. McMurry & Associates in Louisville, Ky., awaiting a decision on the same issue in a similar clergy sex abuse case, O’Bryan v. Holy See, No. 3:04-cv-338 (W.D. Ky.), welcomed Mosman’s decision. But he added that he expects whatever the court decides in his case to go to the 6th Circuit. Whether the 6th and 9th circuits concur, McMurry said that he sees the issue headed “for the ultimate reckoning in front of the U.S. Supreme Court.” According to the plaintiffs, Father Andrew Ronan, the alleged offender, was an admitted child molester whose activities prompted his transfer from the Archdiocese of Armagh in Northern Ireland to an all-boys high school in Chicago, then to a parish church in Portland, Ore. “Placement of a known child molester in a Portland parish, where he would have unlimited access to young boys for the third time, without warning the new parishioners, is not the kind of discretionary act that the [tortuous activity] exception is meant to immunize,” Mosman wrote in his opinion. ‘Key underpinning’ Anderson said that Ronan’s international movement provided “the key underpinning” of the case because it reflects a long-standing protocol promulgated by the church hierarchy from the top down to control scandal internally, as well as a pattern and practice of moving problem priests within the system. He said that Mosman’s decision could have an impact on at least two cases pending against the Holy See: McMurry’s clergy abuse case and a Croatian Holocaust survivors’ class action against the Vatican Bank, Alperin v. Vatican Bank, No. 3:99-cv-4941 (N.D. Calif.). But Lena, who also represents the Holy See in these cases, said that Mosman’s ruling against the plaintiffs on the commercial activities exception could help his client in those cases. The plaintiffs had argued unsuccessfully that the Holy See operates as a worldwide organization established to promote and expand its services in return for revenue. The plaintiffs have cross-appealed the ruling on this issue.

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