Appeals court: Men can sue Illinois Diocese

By Ted Slowik - staff writer
Joliet, IL News
January 19, 2006

OTTAWA — In a ruling that could have major implications for victims of childhood sexual abuse in Illinois, an appeals court is upholding the rights of five men to sue the Roman Catholic Diocese of Joliet.

In a split decision, the 3rd District Appellate Court rejected the diocese's argument that too much time had elapsed from when the alleged abuses occurred for the men to pursue legal action. The majority ruled that the statute of limitations hadn't expired, and that a jury should decide the truthfulness of the men's claims that they only recently discovered the lasting harm caused by the alleged abuses.

Advocates for victims of sexual abuse by priests hailed the decision, which the court issued on Friday. The diocese and attorneys for the men learned of the decision late Tuesday.

"This is part of a nationwide trend in which judges are more often ruling that the church's internal policies do not trump civil and criminal laws," said David Clohessy, national director of the Survivors Network of those Abused by Priests.

The Joliet Diocese said on Wednesday that it was considering its options.

"The decision of the three appellate judges was not unanimous. The diocese's legal counsel is considering the possibility of an appeal in the near future to the Illinois Supreme Court," said Tom Kerber, newly appointed spokesman for the diocese.

Appellate Justices Tom Lytton and Mary McDade issued the majority opinion, with Judge Daniel Schmidt dissenting.

The ruling could create opportunities for other victims of childhood sexual abuse to seek legal remedies decades after the fact.

"It's a huge opinion," said Schaumburg attorney Joe Klest, who has represented abuse victims. "This opens the door for everybody. It's going to go to a jury to decide when a victim had enough information to know that they were injured, and that the injury was caused by the abuse."

The ruling stems from five cases first filed in 2002. Brian Softcheck of Joliet and three others identified only as John Doe sued the diocese, claiming it was responsible for the sexual abuses allegedly committed by the Rev. Larry Mullins. James Fonck claimed similar liability for alleged abuse by then-priest Michael Gibbney. The men were represented by local attorneys Mike Bolos and Keith Aeschliman.

Will County Judge James Garrison dismissed the suits, accepting the diocese's argument that a "reasonable adult" should have known by age 28 at the latest that sex between adults and children was wrong. The five were all in their 30s when the suits were filed.

But the appellate court "accepts as true" the plaintiff's claims that they "lacked sophistication to perceive psychological or emotional harm" until later in life.

"In resolving a motion to dismiss, a court must assume that all well-pleaded facts are true," the majority opinion states.

In his minority dissent, Schmidt maintains that legal precedents which set time limits for childhood sex abuse victims should prevail.

"Our supreme court has already held that, as a matter of law, no reasonably prudent adult can be heard to say that he or she does not understand that sex between an adult and a child is both wrong and harmful," he wrote.

All three justices concurred in rejecting Gibbney's claim that the First Amendment protects the Catholic Church from having its teachings challenged in court. The court ruled that it wasn't being asked to decide the validity of church teachings.

"Nowhere in plaintiff's complaints is the court asked to 'pass judgment' on church doctrine. Plaintiffs would be required to establish their allegations as to church teachings as facts. The trier of fact would determine, however, only whether the church in fact teaches what plaintiffs allege it teaches," the opinion states.

If the diocese appeals and the Supreme Court upholds the ruling or chooses to not hear the case, then the lawsuits may proceed to the discovery process. That means Joliet Bishop Joseph Imesch, Mullins, Gibbney and others could be required to testify under oath and that the church could have to make available to the court documents detailing alleged sexual abuses by priests.

Mullins, who served at the Cathedral of St. Raymond and other parishes, remains a priest though Imesch removed him from active ministry in 1993. He is executive vice president and chief executive for Independent Electrical Contractors Inc., a trade group based in Alexandria, Va. Gibbney's last known address was in Alsip.

- Contact Ted Slowik at (815) 729-6053 or at [email protected].

01/19/06