WEDNESDAY, July 16, 2008, 11:53 a.m.

Claims against Catholic dioceses dismissed

By Marie Rohde

The Madison Catholic Diocese did not have a duty to warn potential employers of a Catholic school teacher's past sexual abuse of children, the Wisconsin Supreme Court said in a complex decision released today.

However, the court was split 3-3 on whether to reverse decisions that dismissed the same allegations against the Milwaukee Catholic Archdiocese where church officials had begged parents not to report abuse to police and promised that the teacher would be sent for treatment and not allowed to come in contact with children. Because of the even split, the decision to dismiss the case against Milwaukee was allowed to stand.

The court did not decide two key issues: Whether the church has immunity from lawsuits under the First Amendment protection guarding the practice of religion and whether the statute of limitations prevents such cases from being brought, said Marcie Hamilton, a New York lawyer who argued the case for the plaintiffs.

"This is a very narrow decision," said Hamilton. "It's a rare case that will not have broad application."

In the case against the Madison Diocese, the high court found that the victims failed to show that the church was negligent; if they had shown Madison was negligent, the court would have denied liability on public policy grounds, according to the decision.

"There is no state in which employers are recognized as being negligent for failing to seek out, find, and warn future employers of sexually dangerous former employees," wrote Justice Louis Butler in a 28-page decision.

The case was brought by five men who said they were abused as children in a Kentucky Catholic grade school by Gary Kazmarek between 1968 and 1973, after he had been forced to leave Catholic schools in the Archdiocese of Milwaukee and the Diocese of Madison after similar complaints had been made. They were suing the two dioceses and their insurers.

Claims of sexual abuse in Milwaukee were brought to the attention of the Archdiocese of Milwaukee long before Kazmarek went to Kentucky. Church officials promised two dozen of the victims' parents "that Kazmarek would be sent to a treatment center and that he would never have contact with children again" the opinion reads, and "pleaded with parents to not report Kazmarek's crimes to the police." Instead, he was allowed to leave Milwaukee quietly and go on to work in other schools.

Kazmarek admitted sexually abusing up to 10 more children at St. Bernard School in the Madison Diocese but there was no evidence that church officials there made similar promises to parents when the abuse came to light, the decision noted.

Everyone in the state has a "duty to act with reasonable and ordinary care under the circumstances," the court said, adding that the diocese's mere knowledge of the past sexual abuse and his propensity for future abuse doesn't require officials to notify all potential employers in parochial schools around the country.

Butler noted that it is critical that sexual abuse victims receive full justice through our criminal and civil laws to the extent legally possible, and that the plaintiffs in the case had been compensated through a settlement with the Archdiocese of Louisville, in Kentucky.

"But what about the dozens of victims of Kazmarek right here in Wisconsin that the court does not address?" asked Peter Isely, a spokesman for SNAP, a group of survivors of sexual abuse who have been pushing for legal reform for more than a decade. "They received absolutely no justice, even though many of them were sexually molested after Kazmarek assaulted these Kentucky plaintiffs."

Mark Salmon, who was assaulted by Kazmarek in Milwaukee years ago, obtained a more-than $600,000 verdict against Kazmarek as a result of a 1995 lawsuit. Salmon has not been able to collect any money from the teacher who was sentenced to 13 years in prison in 2004 after pleading guilty to abusing five former students in Louisville.

Isely called Butler's comment about justice for victims "a powerful plea" directed at the Wisconsin Legislature to pass a law that would enable victims to sue the church here.

In Wisconsin, two earlier decisions prevented victims from suing the church. In 2007 the high court opened the door a bit when it ruled unanimously that the church could be sued for fraud if it knowingly placed priests with records of sexually abusing minors in parishes without alerting the congregation or others to the danger.

The high court was evenly divided on one basic issue - the pretrial dismissal by a lower court of the case brought by the men based on the question of whether the statute of limitations had expired. When the court is evenly divided, the lower court rulings are allowed to stand.

Supreme Court Chief Justice Shirley Abrahamson was joined by Justices Ann Walsh Bradley and Butler who wanted to reverse the decision and allow the case to proceed despite its age. Justices N. Patrick Crooks, Patience D. Roggensack and Annette Kingsland Ziegler agreed with the Appeals Court decision that the case should be dismissed because it was brought past the statute of limitations.

Justice Prosser, a former prosecutor who handled cases of sexual abuse involving the Catholic Church, did not participate in the decision.

Jerry Topczewski, a spokesman for the archdiocese, said it is pleased with the decision and added: "Regardless of the decisions made in our court system, the Archdiocese of Milwaukee remains committed to working with victims/survivors of sexual abuse, especially those victimized by clergy, in the hopes of resolution and healing for those harmed."

Hamilton, the lawyer for the victims in this case, said had there been an effective system requiring church officials to report allegations of abuse, more cases would have been prevented.

"If insurance companies had required that the dioceses report these incidents, this would not have occurred," Hamilton said. "Instead, the insurance companies have just quit offering insurance."