Parks v. Roman Catholic Diocese of Burlington, Vt., Inc., No. S0999-10 CnC (Grearson, J., Oct. 18, 2012)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                             CIVIL DIVISION
Chittenden Unit                                                                                            Docket No. S0999-10 CnC

DANIEL PARKS
     Plaintiff

           v.

ROMAN CATHOLIC DIOCESE OF
BURLINGTON, VERMONT, INC.
     Defendant

                              RULING ON MOTION FOR SUMMARY JUDGMENT

        The above-captioned case is one of several pending before this court in which an adult
plaintiff—in this case, Daniel Parks—sues the Roman Catholic Diocese of Burlington, Vermont,
Inc. (the Diocese) on a variety of theories, all of which stem from alleged childhood sexual abuse
perpetrated upon the plaintiff by one of the Diocese’s former priests—in this case, Edward
Paquette.1 Mr. Parks alleges that he has suffered a variety of long-term psychological damages
as a result of the sexual abuse. Compl. ¶ 43 (filed Aug. 17, 2010). The Diocese moves for
summary judgment with, broadly speaking, two categories of arguments: (1) a statute-of-
limitations argument and (2) constitutional and other arguments. Plaintiff opposes the motion.
The court has considered the parties’ arguments in their filings as well as at oral argument held
on September 25, 2012.

                                                             BACKGROUND

       The following facts are undisputed for present purposes except where noted.2 Mr. Parks
was born on August 14, 1966. He alleges that, in the late 1970s, while he was an altar boy and
Edward Paquette was a priest at the Diocese, Paquette sexually abused and exploited him.
Compl. ¶¶ 5–11.3 The abuses occurred at the church, either before or after the mass in which

1
 Some of the other cases involving similar issues are Whalen v. Roman Catholic Diocese of Burlington, Vermont,
Inc., No. S1163-10 CnC, and Dunn v. Roman Catholic Diocese of Burlington, Vermont, Inc., No. S1271-10 CnC.
The court is also aware of another similar case currently pending in federal court captioned Colomb v. Roman
Catholic Diocese of Burlington, Vermont, Inc., as well as the federal court’s recent ruling in that case. See No. 2:10-
cv-00254, 2012 WL 4479758 (D. Vt. Sept. 28, 2012).
2
  The Diocese has filed a 79-paragraph statement of undisputed facts in support of its motion for summary judgment.
In support of his opposition, Mr. Parks has filed a 150-paragraph statement. Mr. Parks’ statement does not respond
to the Diocese’s statement paragraph-by-paragraph, which makes it somewhat more difficult to determine what facts
might be in dispute. The court has done its best to make that determination. The court also presents here
substantially fewer than all of the facts the parties have set forth in their statements because not all of those facts are
material to the issues to be decided here.
3
 There is no dispute that these are Mr. Parks’ allegations. Most of the particular details and the truth of the
allegations are not material to any issue presented in the pending motion.
Mr. Parks participated as an altar boy. According to Mr. Parks, Paquette’s abuse did not seem
sexual to him at the time it occurred because “at that age you don’t know what sex is, so you’re
not thinking that this is sexual activity. You’re just thinking, this is weird, old people are weird.”
Parks. Dep. 40:12–16, Mar. 22, 2011.

        Mr. Parks does not clearly remember seeing Paquette fondle other altar boys, and does
not recall talking to his friends about it. By his late teens or early twenties—perhaps earlier—he
realized that what Paquette had done was wrong. Ever since that realization, Mr. Parks has felt
“a bit of embarrassment and shame and a bit of anger.” Id. 53:13–54:2. Perhaps around 2001, a
friend told Mr. Parks that Paquette had reached into the friend’s pants in a movie theater.

        It is undisputed that the Burlington Free Press ran the following stories in 2002: (1) in
February, a story mentioning settlements with priests in Massachusetts suspected of sexually
abusing children; (2) in April, a story that Vermont’s Attorney General was investigating priests
of the Diocese for abuse of minors; (3) in May, stories that the Diocese gave the attorney general
the names of 20 priests accused of molesting children, and that six priests were placed on leave
while allegations were investigated; (4) in October, a story about a lawsuit against the Diocese
brought by Michael Bernier in July 2002, and based on allegations of sexual abuse by a priest in
the Diocese. See Pl.’s Resps. to Def.’s First Reqs. to Admit ¶¶ 16, 19, 22, 26, 32. Although he
does not recall specific dates, Mr. Parks read in the Burlington Free Press about several cases and
several settlements involving Paquette. His reaction as he read those stories was that he had
“turned out all right.” Parks Dep. 66:20. Sometime around 2004 or 2005, Mr. Parks told one or
both of his parents about the abuse.4

       Mr. Parks does remember hearing or reading about Michael Gay and Perry Babel’s cases
involving Paquette’s abuse of them, although he does not think he heard about either of those
cases until after a verdict or settlement was reached. See Parks Dep. 70:13–71:15; 74:9–11.
Michael Gay’s case settled on April 19, 2006. See Docket No. S0748-04 CnC. The jury in Perry
Babel’s case returned a plaintiff’s verdict on May 13, 2008, and the case was on appeal in the
Supreme Court when the parties stipulated to its dismissal on January 21, 2010. See Docket No.
S0274-05 CnC.

        Mr. Parks decided to pursue legal action the summer of 2010. By that time he had
learned about a large settlement involving other abuse victims. Parks Dep. 66:12–15. (The
“large settlement” was the May 2010 settlement of twenty-six individual child sex abuse cases
that were at that time pending against the Diocese.) Mr. Parks decided to sue at that time
because he:

         had a realization that I didn’t turn out okay. That was always my thinking was
         that I turned out okay, and one day I just looked in the mirror and said to myself,
         you did not turn out okay, look at your life, and I kind of realized that things are
         not like they could have been, and I feel that’s because of this abuse.

4
  There is a substantial amount of fuzziness about when Mr. Parks told his parents. He does not recall whether he
told both his parents, but if he did tell them both, it would necessarily have been before his father’s death on January
1, 2005. In any case, plaintiff asserts in his memorandum in opposition that he told his parents “somewhere around
2005.” Opp’n at 17.

                                                           2
Id. 65:21–66:6. The complaint in this case was filed on August 17, 2010.

                                                    ANALYSIS

                                             I. Statute of Limitations

       The statute-of-limitations analysis begins with the following provision, which is cited by
both parties:

         A civil action brought by any person for recovery of damages for injury suffered
         as a result of childhood sexual abuse shall be commenced within six years of the
         act alleged to have caused the injury or condition, or six years of the time the
         victim discovered that the injury or condition was caused by that act, whichever
         period expires later. The victim need not establish which act in a series of
         continuing sexual abuse or exploitation incidents caused the injury.

12 V.S.A. § 522(a) (emphasis added).5 The “act” described in this particular discovery rule
“may refer to the alleged act of negligence by a third party.” Turner v. Roman Catholic Diocese
of Burlington, Vt., 2009 VT 101, ¶ 44, 186 Vt. 396 (quoting Earle v. State, 170 Vt. 183, 191 n.4
(1999)). The allegedly wrongful acts in this case are not the acts of Paquette himself—which
occurred in the late 1970s—but are instead the acts of the Diocese in hiring and retaining
Paquette, allegedly failing to prevent the abuse, and allegedly conspiring to cover up the abuse.
In addition, the Legislature’s use of “discover” in § 522 builds upon the “discovery rule,” and
therefore incorporates an objective standard. See Earle, 170 Vt. at 192. Thus, the date of
accrual in this case is the point at which a reasonable person in Mr. Parks’ position should have
discovered the basic elements of a cause of action: an injury caused by the negligence or breach
of duty of the Diocese. See id. at 193.

        The Diocese asserts that Mr. Parks had all the information he needed no later than 2002
(the year the Free Press ran the stories mentioned above, and the year Michael Bernier brought
his lawsuit). According to the Diocese, under Turner, Mr. Parks was on inquiry notice of a claim
against the Diocese. The Diocese further asserts that the court should reach that conclusion as a
matter of law because there is no legally sufficient evidentiary basis for a reasonable jury to find
for Mr. Parks on this issue. Mr. Parks’ allegation that he realized in summer 2010 that he did not
turn out okay is, according to the Diocese, a subjective discovery only, and the test is what a
reasonable person should have known. Mr. Parks concedes that the Diocese can point to facts
that might cause a jury to determine that he should have inquired earlier, but maintains that the
limitations issue remains for the jury.



5
 Section 522(a) contains a retroactivity provision that effectively reduces its six-year limitations period to the three-
year limitations period in § 512(4) in cases where the act of sexual abuse and the discovery that the injury or
condition was caused by the act of sexual abuse occurred prior to July 1, 1984. See Turner v. Roman Catholic
Diocese of Burlington, Vt., 2009 VT 101, ¶¶ 37, 44, 186 Vt. 396 (explaining retroactivity provision and the
distinction between the retroactivity provision’s discovery rule and § 522’s discovery rule). In this case, the Diocese
does not argue for the shortened three-year limitations period.

                                                           3
        The court agrees that this is a jury issue. “[T]he determination of when a claim accrues is
generally a question reserved for the trier of fact . . . .” Turner, 2009 VT 101, ¶ 48. However, “it
is appropriate for a court to determine the issue when there is no legally sufficient evidentiary
basis for a reasonable jury to find for the nonmoving party on that issue.” Id. In Turner, the
plaintiff brought suit against the Diocese in 2004, alleging negligent hiring, training, supervision,
and retention of a priest—in that case, Alfred Willis—who sexually assaulted Turner in 1977.
Id. ¶ 2. Turner opposed the Diocese’s motions for summary judgment motion and judgment as a
matter of law by relying on the plaintiff’s statements that he was unaware that his mental health
problems were caused by the sexual abuse, or the potential liability of the Diocese, until after
1998. Id. ¶¶ 38, 39. The trial court denied the motion, id. ¶ 40, and denied the defense’s motion
for judgment as a matter of law on the statute-of-limitations issue, id. ¶ 41. However, after the
jury indicated in its verdict that the Diocese had proven its statute-of-limitations defense, the
plaintiff moved for judgment as a matter of law, arguing that there was no evidence to support
the jury’s finding that Turner knew, or should have known, of the Diocese’s responsibility prior
to September 2, 1998. Id. ¶ 41. The court granted the motion, reasoning that “knowing a priest
breached a duty does not, per se, tip off the reasonable person that the diocese had also breached
a duty.” Id. ¶ 42. The Supreme Court concluded that, in that case, it would have been
inappropriate for the trial court to determine the statute-of-limitations issue as a matter of law
one way or the other. Id. ¶ 56 (adopting the “middle ground”: send the issue to the jury).

        Notably, the Supreme Court’s analysis concerned the third of a three-part inquiry into
when Mr. Turner knew (or should have known) of: (1) his molestation; (2) harm resulting from
that molestation; and (3) responsibility of the Diocese. Id. ¶ 47. Of course, there is no way for a
plaintiff to conclude that the Diocese might be responsible for harm resulting from molestation
until the plaintiff knows (or should know) that he was molested and that he suffered harm as a
result. Here, Mr. Parks concedes that he knew he was molested by his late teens or early
twenties. He has testified, however, that he did not know of harm resulting from that molestation
until 2010.6 In his words, it was not until 2010 that he realized that he “didn’t turn out okay” and
came to feel that he did not turn out okay “because of this abuse.” If the jury agrees, then there
was no way that Mr. Parks (or anyone in his position) could have known that the Diocese might
be responsible until 2010 at the earliest. All of the discussion in Turner about what a plaintiff
might know about the Diocese’s responsibility is academic if the plaintiff does not even know
that his injuries resulted from the molestation.

         Determining the time at which Mr. Parks knew or should have known that he was harmed
by the molestation is a jury issue. It was a jury issue in Turner; in that case, Mr. Turner had
testified that he was unaware that his mental health problems were caused by the sexual abuse
until 2002. Id. ¶ 39. The jury in that case concluded that Mr. Turner did know that he was
harmed by the molestation prior to September 2, 1998. Id. ¶ 41. (That then raised the question
of whether he necessarily also should have known that the Diocese might be liable.) The jury’s
finding in Turner does not affect this case, however—Mr. Parks’ jury will need to hear his
testimony and other evidence to decide when he knew or should have known that he was harmed
as a result of the molestation.

6
 The fact that Mr. Parks felt embarrassment, shame, and anger ever since he realized that he was molested does not
necessarily mean that he realized that he had the serious injuries he alleges in his complaint.


                                                        4
        The Diocese has gone to great lengths to discuss earlier cases brought against it and the
fact that those cases received attention in the local media. How that media attention affects the
analysis of the third prong—whether Mr. Parks had or should have obtained information
sufficient to put a reasonable person on notice that the Diocese might be liable—is an interesting
question not addressed in Turner. At first blush, the court is inclined to think that the presence of
such ample news reporting about cases against the Diocese would alter the Turner analysis, since
there would then be tangible basis for a reasonable plaintiff who knew he was injured by a
priest’s abuse to consider suing the Diocese.7 The court need not rule on that question in this
case at this time, however, because it puts the cart (prong three) before the horse (prong two): it
is necessary to make a finding about when Mr. Parks knew or should have known that his
injuries resulted from the molestation before delving into the question of whether a reasonable
person with that knowledge might think the Diocese is liable.

        The media attention also seems relevant to the second prong of the analysis. One might
argue that, having seen or been aware of those reports—which, after all, were about individuals
claiming to have been harmed by childhood sexual abuse—Mr. Parks should have known that
he, too, was harmed by the molestation. The court concludes that that might be a good argument
to make to the jury, but that it does not mean that there is no evidentiary basis for a jury to find
that Mr. Parks did not discover or should not have discovered the cause of his alleged problems
until more recently.8 A reasonable person might know that he was abused, might know that he
had problems, and might know that others had sued the Diocese for problems caused by abuse,
but the person might still not connect the abuse to his particular problems. Whether or not a
reasonable person should make that connection depends on the particular circumstances of each
case.

       Because it concludes as it does, the court does not need to reach Mr. Parks’ alternative
claim based on 12 V.S.A. § 555.

                          II. The Diocese’s Constitutional and Other Arguments

        The remaining bases for the Diocese’s motion for summary judgment are mostly
constitutional arguments. The court takes up each argument in turn.




7
 This is especially so in this case because here, unlike in Turner, the abuse occurred on church premises while the
priest was acting as a representative of the church.
8
  The Diocese latches on to and criticizes plaintiff’s statement in his opposition that “Mr. Parks will explain why he
did not inquire earlier . . . .” Opp’n at 18. It is true that a party opposing summary judgment is not entitled to a trial
on the basis of a hope that he can produce some evidence at that time. 10A Wright, Miller, Kane, & Marcus,
Federal Practice and Procedure: Civil 3d § 2727 (WL updated Apr. 2012). Here, however, Mr. Parks has asserted
that prior to summer 2010 he was unaware that his problems were caused by the sexual abuse. This is not a “hope”
of evidence, it is evidence, and Mr. Parks is entitled to present it and elaborate upon it at trial.


                                                            5
                                    A. The First Amendment

        After reciting the First Amendment’s Establishment and Free Exercise Clauses, and the
religious autonomy doctrine, the Diocese asserts that:

       [T]he continued exposure to damages (including punitive damages) makes it
       highly likely that the tort system will put the Diocese out of existence. If the
       protections of the First Amendment are to mean anything, the government
       (through the mechanism of the tort system) should not be allowed to shut the
       doors of a church and put it up for sale.

Mot. for Summ. J. at 22. The Diocese points out that the civil judgments that have been entered
against it in previous priest sex-abuse cases are larger than the criminal fines Paquette himself
could have been liable for under the criminal law. At the same time, the Diocese notes that in
these civil cases it has not benefitted from the protections that a criminal defendant, such as the
prohibition on double-jeopardy and a heightened standard of proof. The Diocese maintains that
its financial ruin at the hands of tort plaintiffs is unacceptable under the First Amendment, and
seeks either dismissal or what it calls a “middle ground” in which the court grants to the Diocese
criminal law protections, including the criminal standard of proof and a requirement that, to be
liable, its Bishop during the relevant time period have acted with criminal intent and malice.

       In opposition, Mr. Parks asserts that (to summarize): (1) the Vermont Supreme Court in
Turner has already held that the First Amendment does not bar claims of this type; (2) the First
Amendment cases the Diocese cites do not stand for the proposition it says they do; (3) the
Diocese’s assertion about going out of existence is speculative, especially because (a) the
amounts the Diocese has paid to resolve prior priest sex-abuse cases are not as large as the
Diocese says they are; (b) the Diocese may be covered by insurance; and (c) because in any case
the Diocese may avail itself of the U.S. Bankruptcy Code.

        In reply, the Diocese argues that Mr. Parks “misses the import of the constitutional
concern” raised in its motion. Reply at 13. According to the Diocese, Mr. Parks has not
addressed its contention “that open-ended exposure to potentially crippling judgments has as
much of a chilling effect on freedom or religion as on freedom of speech.” Id. at 15 (citing
Sullivan). Bankruptcy, says the Diocese, is not a means of protecting against constitutional
violations.

        The court concludes that the Diocese’s argument is speculative and premature—it rests
on a chain of assumptions, including whether a jury would find the Diocese liable, whether it
would award damages, how much any such damages might be. Moreover, even if the court
could entertain such a speculative premise, the Diocese’s argument fails on its merits. “The First
Amendment provides, in relevant part, that ‘Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.’” Turner, 2009 VT 101, ¶ 26
(quoting U.S. Const. amend. I). Although the First Amendment refers only to Congress, “[t]he
prohibitions contained in the First Amendment apply to the states by operation of the Fourteenth
Amendment.” Id. (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)).



                                                 6
        In Turner, the Diocese argued that “allowing plaintiff to pursue a negligent hiring claim
against it would violate the Free Exercise Clause because in order to assess the reasonableness of
defendant’s decision to ordain Willis, the court has to pass judgment on an ecclesiastical
decision.” Id. ¶ 25. The Diocese also argued that “allowing plaintiff to pursue a negligent
supervision claim transgresses both the Free Exercise and Establishment Clauses and the
religious autonomy doctrine because the supervision of clergy is inextricably rooted in religious
doctrine and belief.” Id. The Supreme Court considered and rejected the Diocese’s arguments in
that case based on the Free Exercise Clause, the Establishment Clause, and the religious
autonomy doctrine. Id. ¶¶ 27–35.

        Although the Diocese cites the Free Exercise and Establishment Clauses and the religious
autonomy doctrine in Mr. Parks’ case, the Diocese’s arguments in this case are different than the
arguments the Supreme Court rejected in Turner. In this case, the Diocese is arguing that its
exposure to tort law unconstitutionally threatens to suppress religion by crippling the Diocese’s
infrastructure, thereby depriving the Catholic faithful of the free and unhindered exercise of
religion. The First Amendment analysis in Turner is therefore not precisely on point with
respect to the issue the Diocese raises here.

        In support of its argument, the Diocese relies upon New York Times Co. v. Sullivan. In
that case, the New York Times Company ran a full-page advertisement on March 29, 1960
entitled “Heed Their Rising Voices,” referring to the rising voices of civil rights demonstrators in
the South. 376 U.S. 254, 256 & app. A (1964). One of the elected Commissioners of the City of
Montgomery, Alabama, L. B. Sullivan, brought a civil libel suit against the New York Times and
others, alleging that, since he supervised the Montgomery Police Department, certain statements
in the advertisement that were critical of police conduct were directed at him. See id. at 257.
Under Alabama law at the time, there was no defense or privilege for libelous words against a
public official, save for proof that the words were true. Id. at 267. In fact, some of the
statements that the Commissioner challenged were not accurate descriptions of events that
occurred in Montgomery. Id. at 258. A jury in Alabama state court awarded Mr. Sullivan
$500,000 in damages, and the Supreme Court of Alabama affirmed. Id. at 256.

        The Supreme Court of the United States reversed, holding that “the rule of law applied by
the Alabama courts is constitutionally deficient for failure to provide the safeguards for freedom
of speech and of the press that are required by the First and Fourteenth Amendments in a libel
action brought by a public official against critics of his official conduct.” Id. at 264. It was not
enough that the Alabama law allowed the defense of truth, since requiring critics to guarantee the
truth of their assertions on pain of libel judgments would lead to self-censorship inconsistent
with the First and Fourteenth Amendments. Id. at 279. Neither was the Court convinced that
injury to public officials’ reputations could justify repressing speech. Id. at 272. Noting that
Alabama had a criminal libel law, the Court went on to say that “[w]hat a State may not
constitutionally bring about by means of a criminal statute is likewise beyond the reach of its
civil law of libel.” Id. at 277. The Court remarked that:

       Whether or not a newspaper can survive a succession of such judgments, the pall
       of fear and timidity imposed upon those who would give voice to public criticism
       is an atmosphere in which the First Amendment freedoms cannot survive. Plainly

                                                 7
           the Alabama law of civil libel is “a form of regulation that creates hazards to
           protected freedoms markedly greater than those that attend reliance upon the
           criminal law.”

Id. at 278 (quoting Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963)).

        Mr. Parks’ case does not involve the same free speech / freedom of the press issue as in
Sullivan, nor does it come within the narrow holding of that case, which concerns a state’s power
to award damages “for libel in actions brought by public officials against critics of their official
conduct.” Id. at 283. Moreover, the risk of tort judgments against the Diocese does not come
from a law that fails to provide sufficient safeguards for freedom of religion. Alabama’s civil
libel law was constitutionally defective because it effectively compelled the critic of official
conduct to guarantee the truth of all of his factual assertions. In a democracy that demands
vigorous public debate—including debate on the actions of public officials—the chilling effect
of such a law is unacceptable.

         The lesson from Sullivan was not that the Constitution requires courts to supply
additional protections to tort defendants (even defendants that play important roles in our society
such as newspapers and churches) in cases where repeated lawsuits threaten them financially. A
careful reading of the Supreme Court’s statement block-quoted above reveals that the Court’s
concern was not that a newspaper might fail from a succession of judgments. Regardless of
whether the newspaper could survive the repeated judgments, the constitutional problem was a
law that, by its very existence, chilled speech. If Alabama’s civil libel law had included a
provision requiring the plaintiff to prove actual malice, it would not have had the
unconstitutional chilling effect. And if a parade of plaintiffs successfully sued the New York
Times under a civil libel law that did require such proof, the newspaper could not point to
potential financial ruin as a defense. In contrast to Alabama’s civil libel law, this court can not
see anything about the existence of the Vermont tort laws at issue in this case that infringe on the
establishment, free exercise, or autonomy of religion. This was implicit in Foster v. Roman
Catholic Diocese of Vermont, in which the Court stated that immunity or exemption from tort
liability for religious societies is not required by the Constitution. 116 Vt. 124, 137 (1950).

         More specifically, the Establishment Clause “prohibits government action that tends to
endorse, favor, or in some manner promote religion.” Turner, 2009 VT 101, ¶ 31. Courts use
the three-prong Lemon test9 to evaluate Establishment Clause cases. Id. To pass the Lemon test,
government action must have a secular purpose, its primary effect must not enhance or inhibit
religion, and it must not foster an excessive government entanglement with religion. Id. Here,
as in Turner, the Diocese does not contend that a judicial inquiry in these types of claims serves
any purpose other than a secular purpose. Neither is there any excessive entanglement because
the claims are “not measured against canon law, but rather against secular legal standards.” Id.
¶ 32. What the Diocese seems to be arguing is that the effect of tort law in this case inhibits
religion. While the application of tort law has undoubtedly harmed the Diocese, its primary
effect is not to inhibit religion. The primary effect of the tort laws at issue here is to prevent
neglect of duty. See id. (“The duty owed by defendant to protect minors from sexual abuse is not
different from the duty owed by other institutions to which the common law applies.”); Foster,
9
    Referring to Lemon v. Kurtzman, 403 U.S. 602 (1971).

                                                           8
116 Vt. at 134 (“Neglect of duty should be prevented, not encouraged.”). That is a neutral
principle that applies to all actors, religious or otherwise.

        Similarly, the Free Exercise Clause “guarantees the freedom to hold religious beliefs and
the freedom to act in accordance with those beliefs.” Turner, 2009 VT 101, ¶ 27. However,
“[t]o be protected under the Free Exercise Clause, the conduct that the state seeks to regulate
must be ‘rooted in religious belief.’” Id. (quoting Wisconsin v. Yoder, 406 U.S. 205, 215
(1972)). Here, as in Turner, there is no indication that the law at issue is anything “other than a
neutral law of general applicability or that it is directed specifically towards a religious belief or
practice of the defendant.” Id. ¶ 28. Finally, the relevant circumstances of this case are not
materially different from the circumstances in Turner that were insufficient to shield the Diocese
from accountability for negligence under the religious autonomy doctrine. See id. ¶ 34. In short,
none of the First Amendment tests involve an inquiry into the consequences of any potential
exposure to liability.

                                          B. Due Process

                            1. Timeliness / Unavailability of Evidence

        The Diocese argues that trying this case would deny it due process, generally because the
case involves conduct that occurred thirty-five years ago. Specifically, the Diocese argues that
there is a due process violation here because: (1) its key witness, Bishop Marshall, has been dead
for nearly two decades, and many other witnesses have passed away or have diminished
memories, and (2) the Diocese cannot properly investigate plaintiff’s claims because plaintiff’s
pediatric records are unavailable.

         The Fourteenth Amendment provides that no state shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend XIV, § 1. Generally, this
provision requires “at least some legal procedure in which the person proceeded against, if he is
to be concluded thereby, shall have an opportunity to defend himself.” Bioni v. Haselton, 99 Vt.
453, 457 (1926) (quoting In re Gannon, 18 A. 159, 160 (R.I. 1889)).

         The due process implications of a delay in legal action appear in the criminal context, and
the court turns to that realm for guidance here. To begin, this argument is somewhat reminiscent
of the Diocese’s statute of limitations argument (discussed supra). Indeed, one of the policies
underlying the statutes of limitations is fairness to defendants, and ensuring that they not be
deprived of the ability to defend because evidence is no longer available. Inv. Props., Inc. v.
Lyttle, 169 Vt. 487, 490 (1999). “The statute of limitations, however, is not the sole measure of
whether a prosecution is timely.” State v. Delisle, 162 Vt. 293, 312 (1994) (citing United States
v. Marion, 404 U.S. 307, 325–26 (1971)). “A defendant may successfully avoid prosecution if
the preindictment delay violated defendant’s due process rights.” Id. (citing United States v.
Lovasco, 431 U.S. 783, 789–90 (1977)). “Prosecution will be barred where the delay violates
those fundamental conceptions of justice which lie at the base of our civil and political
institutions . . . and which define the community’s sense of fair play and decency.” Id.
(quotations omitted). “In making this inquiry, courts should consider the reasons for the delay
and the actual prejudice to the defendant.” Id.

                                                  9
        Here, in the context of the statute-of-limitations issue, the jury will decide the reasons for
Mr. Parks’ delay. If the jury agrees with the Diocese on that issue, then there will be no need to
delve into the constitutional question. If the jury agrees with the plaintiff, then the delay was
unavoidable, and that part of the due process inquiry favors the plaintiff. As for prejudice, it is
the Diocese’s burden to show actual prejudice attributable to the passage of time. Delisle, 162
Vt. at 313. It has failed to do that. The Diocese does not explain why Bishop Marshall’s
absence prevents it from defending this case but did not prevent it from defending in Turner.
Nor does the court believe that the absence of Mr. Parks’ pediatric records prejudices the defense
so severely that it rises to a constitutional level—as the parties’ lengthy statements of fact
demonstrate, ample facts are available to both sides.

                         2. Alleged Unconstitutionally Variable Damages

        The Diocese argues that the courts have imposed widely varying compensatory and
punitive damage awards against it in some of the previous cases brought by the adult victims of
childhood sexual abuse. The Diocese says that “the unpredictability of the tort scheme leaves it
no way of assessing its financial exposure though the consequences are considerably more severe
than any criminal sanctions.” Opp’n at 32. According to the Diocese, the tort system as it is
applied in these cases is akin to a criminal statute that is void for vagueness or otherwise runs
afoul of the fair warning requirement.

         “Statutes and, by extension, regulations, are unconstitutionally vague when they either (1)
fail to provide sufficient notice of what conduct is prohibited, or (2) authorize or encourage
arbitrary and discriminatory enforcement by failing to provide explicit standards.” In re Rusty
Nail Acquisition, Inc., 2009 VT 68, ¶ 12, 186 Vt. 195. The Diocese has not cited, and the court
has not found, any authority for the proposition that the common law could be void for
vagueness. Even if it could, the Diocese’s argument on this point is meritless. Although many
of the abuse cases brought against the Diocese shared some similar legal issues, the standard for
the award of damages—both compensatory and punitive—does not change, even though the
answer to what damages to award for each case is different, depending on the unique facts of
each case. In other words, it is a question for the factfinder. Damage awards that are clearly
excessive (or inadequate) are treated under the rules of procedure. See Restatement (Second) of
Torts, div. 13, ch. 47, Note on Excessive and Inadequate Damages (noting that the whole matter
of excessive or inadequate damages is regarded as procedural). The court addresses additional
questions regarding punitive damages in the discussion immediately below.

                                       C. Punitive Damages

        The Diocese first argues that Mr. Parks is able to assert his claim for punitive damages
because of the retroactivity provision in 12 V.S.A. § 522, and that the retroactive imposition of
punitive damages raises a serious constitutional question. It is true that in Landgraf v. USI Film
Products, the U.S. Supreme Court stated that “[r]etroactive imposition of punitive damages
would raise a serious constitutional question.” 511 U.S. 244, 281 (1994). Specifically, the
question that would be raised is whether assessing punitive damages against the Diocese violates
the “principle that the legal effect of conduct should ordinarily be assessed under the law that

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existed when the conduct took place.” Id. at 265. In Landgraf, the Civil Rights Act of 1991
created a new right to recover punitive damages for intentional discrimination violative of Title
VII. The new law did not explicitly authorize punitive damages for preenactment conduct, but if
it had, then the ex post facto problem would have loomed, since the defendant’s conduct in that
case occurred prior to the 1991 law’s enactment. See id. at 281.

        This case is different than Landgraf because no law retroactively made punitive damages
available where they were not available before. The retroactivity provision in § 522 has nothing
to do with the availability of punitive damages. The provision did not retroactively make
punitive damages available—all it does is make § 522’s six-year limitations period applicable to
certain causes of action commenced on or after July 1, 1990. Turner, 2009 VT 101, ¶ 37. If
§ 522 does not apply, then a three-year limitations period applies instead. Id. Punitive damages
were available in negligence cases even before § 522 was enacted. E.g., Wheeler v. Cent. Vt.
Med. Ctr., Inc., 155 Vt. 85, 96–97 (1989) (recognizing potential for punitive damages against
Hospital, although concluding that the plaintiff in that case had not demonstrated malice).

        The Diocese’s next argument on this topic is a public policy argument. The Diocese
maintains that punitive damages should not be awarded because its current, innocent,
membership—rather than any wrongdoer—would have to bear the burden of paying those
damages. As the Diocese points out, a similar rationale appears in the context of suits seeking
punitive damages against public entities, and in that context the general rule is that punitive
damages are not allowed unless expressly authorized by statute. See City of Newport v. Fact
Concerts, Inc., 453 U.S. 247, 260 n.1, 263 (1981) (recognizing general rule that no punitive
damages are allowed against municipal corporations unless expressly authorized by statute, and
noting that the rationale for the rule is that “such awards would burden the very taxpayers and
citizens for whose benefit the wrongdoer was being chastised”); see also D. Dobbs, Remedies
§ 3.9, at 217–18 (1973) (discussing punitive liability of public entities).

         The short answer to the Diocese’s public policy argument is that, unlike the rule for
public entities, “[t]here is no common law rule exempting religious or non-profit organizations
from punitive damages awards.” Mrozka v. Archdiocese of St. Paul and Minneapolis, 482
N.W.2d 806, 810 (Minn. Ct. App. 1992). The rule is not that no organization—which is
composed of constituents, some of whom may be innocent—can be liable for punitive damages.
If that were the case, then, for example, corporations could never be liable for punitive damages,
since the award might affect stock prices and harm stockholders who are not themselves the
wrongdoers. This court concludes, as did the Mrozka court, that the municipal exception from
punitive damages in City of Newport is distinguishable from the Diocese’s proposed exemption
for religious organizations. Id. Even if the general rule insulating public entities from punitive
damages did extend to religious organizations, this class of cases would fall into the exception
for “serious misconduct” in which punitive damages may be appropriate. See D. Dobbs,
Remedies § 3.9, at 218.

        Next, the Diocese argues that it has been punished enough in the course of prior sex-
abuse lawsuits, and that it has since taken steps to “put its house in order”—i.e., to prevent this
kind of abuse from happening again. The court concludes that both of those arguments are
arguments that can be made to the jury, but neither argument compels the court to take the issue

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from the jury. As for prior punishments, the Restatement explains that they may be taken into
account as the jury determines the amount of punitive damages, and whether such damages
should be given at all:

       Another factor that may affect the amount of punitive damages is the existence of
       multiple claims by numerous persons affected by the wrongdoer’s conduct. It
       seems appropriate to take into consideration both the punitive damages that have
       been awarded in prior suits and those that may be granted in the future, with
       greater weight being given to the prior awards.

Restatement (Second) of Torts § 908 cmt. e. Similarly, since one of the purposes of punitive
damages is deterrence, the issue of the Diocese’s recent efforts to prevent further abuse may bear
on the question of specific deterrence. Even if the jury concluded that no further specific
deterrence function would be served by awarding punitive damages, it could, depending on the
evidence, reasonably conclude that some punishment might still be in order, or that a punitive
award might still serve a general deterrence function. Again, if the jury does award any punitive
damages, the usual procedural rules are available to correct any such award that might be
excessive. See id. § 908 cmt. d.

         Finally, the Diocese argues that imposing further punitive damages would violate the
Eighth Amendment’s prohibition against “excessive fines” and “cruel and unusual punishments.”
U.S. Const. amd. VIII. However, the Eighth Amendment, by its terms and context, is limited in
applicability to criminal punishments. Coty v. Ramsey Assocs., Inc., 149 Vt. 451, 468 (1988). It
is true, of course, that “[t]he Due Process clause of the Fourteenth Amendment prohibits a State
from imposing a ‘grossly excessive’ punishment on a tortfeasor.” BMW of N. Am., Inc. v. Gore,
517 U.S. 559, 562 (1996) (quoting TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 454
(1993)). There is no basis for the court to conclude that this case (as opposed to some earlier
case or some later case) represents some sort of cutoff at which point the imposition of punitive
damages crosses the constitutional line. Indeed, the fact that the law permits the jury to consider
issues such as the Diocese’s prior payments and efforts to prevent further abuse suggests that
there is a built-in system to prevent the sort of “grossly excessive” punishment that would be
unconstitutional. If this case goes to a jury and the jury returns a punitive damage award that is
beyond the pale, the court will take corrective action.

                                             ORDER

       The Diocese’s motion for summary judgment is denied.

Dated at Burlington this ___ day of October 2012.

                                                     ______________________________
                                                     Brian Grearson
                                                     Superior Court Judge




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