Jane Doe # 2 v. Norwich Roman Catholic Diocesan Corporation et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO STRIKE # 163

In this civil action, the plaintiff, Jane Doe # 2, alleges that she was sexually assaulted by a Catholic priest, Father Thomas Shea, on numerous occasions between 1967 and 1986.   The plaintiff, a resident of Webster, Massachusetts, alleges that Father Shea was an agent, servant and/or employee of the defendant Norwich Roman Catholic Diocesan Corporation (diocese), and that Father Shea often officiated over religious services at St. Joseph's Parish located in that Massachusetts town.   According to the plaintiff, the diocese “received numerous complaints” about Father Shea's propensity to engage in “improper and illegal sexual misconduct with small children, particularly, young girls,” during the period from 1953 until Father Shea's death in 2006.   The plaintiff alleges that despite its knowledge of Father Shea's past conduct, the diocese, inter alia:  (1) failed to report known or reasonably suspected child abuse as required by the Connecticut and Massachusetts mandated reporter statutes, General Statutes § 17a–101a and Massachusetts General Laws c. 119 §§ 21 and 51a;  (2) failed adequately to supervise Father Shea in his workplace;  (3) improperly failed to remove Father Shea from the priesthood once it learned of allegations of abuse;  (4) failed to take appropriate corrective actions to treat medically Father Shea and his victims (5) and that it “failed to warn the [p]laintiff's parents and the parents of other children in the [d]efendant [d]iocese or in other [d]ioceses in Connecticut and Western Massachusetts of the dangers associated with developing and maintaining a relationship with Father Shea ․”

As a result of this conduct, in the operative revised complaint filed on January 30, 2013 (# 160), the plaintiff alleges a negligence cause of action against the diocese in count one.   In count two, the plaintiff brings a negligence claim against the other defendant in this case, Bishop Daniel Reilly, the bishop and executive director of the diocese from 1975 to 1994.   Counts three and four sound in recklessness against the diocese and Bishop Reilly, respectively.   In counts five and six, the plaintiff alleges a breach of fiduciary duty cause of action against both defendants.   Counts seven and eight are conspiracy claims against the diocese and Bishop Reilly.

On February 5, 2013, the defendants ¹ filed a motion to strike counts one through six of the operative complaint.²  As outlined in their motion (# 163) and supporting memorandum of law (# 164), the defendants argue that counts one through six are barred by the first amendment to the United States constitution, General Statutes § 52–571b ³ and article first, § 3, and article seventh of the Connecticut constitution, because they present an impermissible entanglement in the internal governance and procedures of a religious institution.   In the event that the court is unwilling to strike the first four counts, the defendants contend that counts five and six, breach of fiduciary duty, must be stricken because these counts would necessarily force the court to examine religious doctrine.   Finally, the defendants move to strike paragraphs 21(a) and 21(b) of counts one through four, wherein the plaintiff alleges violations of the mandated reporter statutes, on the grounds that these statutes:  (1) do not create a legally enforceable duty to the plaintiff based on the alleged sexual abuse of non-parties and (2) do not create a legal duty owed by mandated reporters for the purpose of common-law negligence and recklessness.   In response to the defendants' motion to strike, the plaintiff filed her memorandum of law in opposition on April 12, 2013 (# 181).   The court heard oral argument on the defendants' motion on June 4, 2013.

“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.”  (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003).   In a motion to strike, “the moving party admits all facts well pleaded.”  RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 383 n.2, 650 A.2d 153 (1994).   When deciding a motion to strike, the court must “construe the complaint in the manner most favorable to sustaining its legal sufficiency.”  (Internal quotation marks omitted.)  Sullivan v. Lake Compounce Theme Park, Inc., 277 Conn. 113, 117, 889 A.2d 810 (2006).  “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.”  Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).  “Insofar as [a] motion to strike is directed [to] the entire complaint, it must ․ fail if any of the plaintiff's claims are legally sufficient.”  (Internal quotation marks omitted.)  Whelan v. Whelan, 41 Conn.Sup. 519, 520, 588 A.2d 251 (1991) [3 Conn. L. Rptr. 135].

The court will first address the defendants' argument that counts one through six are legally insufficient because the claims alleged in these counts excessively burden the defendants' rights to free exercise of religion and result in an impermissible entanglement in the internal governance of a religious institution.   The defendants contend that these claims violate the provisions of the first amendment to the United States constitution, as well as § 52–571b and relevant sections of the Connecticut constitution.   As the defendants acknowledge, these arguments have routinely been rejected by Connecticut courts in cases where the plaintiff alleges sexual abuse by a member of the clergy.   See, e.g., Noll v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Hartford, complex litigation docket, Docket No. X04 CV 02 4034702 (October 20, 2008, Shapiro, J.) (46 Conn. L. Rptr. 527);  Rosado v. Bridgeport Roman Catholic Diocesan Corp., 45 Conn.Sup. 397, 716 A.2d 967 (1998), and cases cited therein.   The Connecticut cases on this subject have primarily followed the reasoning articulated by the United States Supreme Court in Employment Division, Dept. of Human Resources v. Smith 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), in which the court “held that the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”  (Internal quotation marks omitted.)  Id., 879.

The defendants, however, argue that the reasoning in Smith has been undermined by a recent United States Supreme Court case, Hosanna–Tabor Evangelical Lutheran Church & School v. Equal Opportunity Commission, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012).   In Hosanna–Tabor, a minister/teacher at a religious school was terminated from her employment after she was diagnosed with narcolepsy.   The minister then filed a claim with the Equal Opportunity Commission alleging a violation of the Americans with Disabilities Act. The Equal Opportunity Commission subsequently brought suit against the church.   On appeal, the United States Supreme Court adopted the so-called “ministerial exception” to employment discrimination statutes, and it determined that “the existence of a ‘ministerial exception,’ grounded in the First Amendment ․ precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.”  Id., 705.   The court further opined that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.   Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.   By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.   According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”  Id., 706.

According to the defendants, this language “eviscerates” the holding of Smith and the Connecticut Superior Court cases that have relied upon it.   Nevertheless, as noted by the plaintiff at oral argument, the Hosanna–Tabor court does not overrule Smith.⁴  Rather, the Supreme Court explicitly states that “[t]he case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her.   Today we hold only that the ministerial exception bars such a suit.   We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.   There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”  Id., 710.   Given this limiting language in the Hosanna–Tabor court's decision, this court is unwilling to extend the holding of Hosanna–Tabor beyond its facts.   Hosanna–Tabor simply stands for the proposition that a minister is barred from bringing an employment discrimination lawsuit against her employer.⁵  Although the United States Supreme Court's decision in Hosanna–Tabor may indeed bar some of the allegations found in the complaint, such as the defendants' allegedly wrongful failure to remove Father Shea from the priesthood, Hosanna–Tabor does not preclude all of the specifications of negligence and reckless conduct found in counts one through six.   Specifically, the allegations of failure to warn and negligent supervision are not clearly precluded by Hosanna–Tabor.   Accordingly, the court cannot strike these counts on the basis of the first amendment.⁶

Similarly, the defendants' arguments regarding § 52–571b and the Connecticut constitution are not persuasive.   Although it is true that “the overarching purpose of § 52–571b was to provide more protection for religious freedom under Connecticut law than the Smith decision would provide under federal law”;  Rweyemamu v. Commission on Human Rights & Opportunities, 98 Conn.App. 646, 660, 911 A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d 51, cert. denied, 552 U.S. 886, 128 S.Ct. 206, 169 L.Ed.2d 144 (2007);  Connecticut courts have not interpreted § 52–571b as providing blanket tort immunity for religious institutions.   As stated by Judge Shapiro when previously addressing the scope of § 52–571, “this court concludes that the legislature did not intend that § 52–571b would apply to preclude a plaintiff from holding a religious institution responsible for its torts in the context of sexual abuse of a child by a clergyman.   Such claims also are not barred by the provisions ․ of the United States and Connecticut Constitutions concerning religious freedom.”  Noll v. Hartford Roman Catholic Diocesan Corp., supra, 46 Conn. L. Rptr. 532.   When distinguishing the Appellate Court's decision in Rweyemamu, supra, 98 Conn.App. 646, Judge Shapiro stated that “[c]learly, Rweyemamu concerned the applicability of § 52–571b to the enforcement of this state's laws on employment discrimination ․ Rweyemamu did not concern a claim about sexual abuse of a child by a clergyman.”   (Citation omitted.)  Id., 529.   In the absence of any controlling appellate law to the authority, this court similarly refuses to extend § 52–571b to preclude the present action.

Additionally, although the defendants' brief provides an intriguing historical analysis of the provisions of the Connecticut constitution governing religious liberty, the defendants admittedly provide no authority demonstrating that the Connecticut constitution would bar a case such as the present one.   Accordingly, the court rejects this argument as well.

Next, this court will analyze the defenants' argument that counts five and six alleging a breach of fiduciary duty cause of action should be stricken.   The defendants' argument with respect to these counts is essentially the same as counts one through four, except the defendants contend that the first amendment, § 52–571b and Connecticut constitution based arguments are “even stronger” when applied to a breach of fiduciary duty claim because “the relationship is alleged to be based on nothing more than the shared religious affiliation of the plaintiff and the defendants.”   In their supporting memorandum of law, the defendants cite to two Connecticut Superior Court cases, Mallory v. Hartford Roman Catholic Diocesan Corp., Superior Court, judicial district of Waterbury, complex litigation docket, Docket No. X10 CV 07 5007646 (February 29, 2009, Scholl, J.) and DeCorso v. Watchtower Bible & Tract Society of New York, Inc., Superior Court, judicial district of Waterbury, Docket No. CV 98 0145296 (January 7, 2002, Holzberg, J.), aff'd, 78 Conn.App. 865, 829 A.2d 38, cert. denied, 266 Conn. 931, 837 A.2d 805 (2003), to support their position.   In response, the plaintiff cites to the Second Circuit Court of Appeals' decision in Martinelli v. Bridgeport Roman Catholic Diocesan Corp, 196 F.3d 409 (2d Cir.1999), where the court, applying Connecticut law, allowed for such a claim.   In Martinelli, the Second Circuit Court of Appeals, inter alia, rejected the defendants' argument that a breach of fiduciary duty cause of action was barred by the first amendment.   It stated that “the jury's finding of a fiduciary duty was supported by ample evidence apart from the evidence of a religious nature singled out by the Diocese.   To the extent that the jury did consider religious teachings and tenets, moreover, it did so to determine not their validity but whether, as a matter of fact, [the plaintiff] following of the teachings and belief in the tenets gave rise to a fiduciary relationship between [the plaintiff] and the Diocese.   The First Amendment does not prevent courts from deciding secular civil disputes involving religious institutions when and for the reason that they require reference to religious matters.”  Id., 430–31.   As noted by Judge Martin, “[t]he leading authority on [whether a diocese has a fiduciary duty to prevent its priests from sexually abusing parishioners] is the Second Circuit's [decision in Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409 (2d Cir.1999) ] ․ Because of the dearth of case law on the subject in Connecticut, Martinelli has become the seminal case on the issue.”  (Citation omitted;  internal quotation marks omitted.)   Doe v. Norwich Roman Catholic Diocesan Corp., Superior Court, judicial district of New London, Docket No. CV 08 5005553 (June 18, 2009, Martin, J.) (48 Conn. L. Rptr. 59, 61).   The court finds the Martinelli court's analysis on this issue to be persuasive.   Simply put, the court cannot rule, at this stage of the proceedings, that a jury could not rely on facts of a non-religious nature such that the breach of fiduciary claims are precluded by the state and federal constitutions.

Significantly, in Gough v. Saint Peter's Episcopal Church, AC 23836, a decision officially released on July 2, 2013, our Appellate Court analyzed a breach of fiduciary duty cause of action brought against a church in a case where the plaintiff alleged that he had been sexually assaulted by a member of the clergy.   Although the Appellate Court affirmed the trial court's grant of summary judgment in favor of the defendants on lack of duty/foreseeability grounds, the Appellate Court did not comment on whether the breach of fiduciary duty cause of action was barred by the first amendment or the Connecticut constitution.   As a case precluded by the first amendment renders the court without subject matter jurisdiction;  Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 994 A.2d 212, cert. denied, 298 Conn. 903, 3 A.3d 74 (2010);  and the court has an affirmative obligation to raise lack of subject matter jurisdiction sua sponte, it stands to reason that the Appellate Court would have addressed the first amendment issues if it truly felt that breach of fiduciary claims against a church were barred under Connecticut or federal law.   This fact lends further credence to the conclusion that counts five and six are not legally insufficient.

Finally, the court will address the defendants' argument that paragraphs 21(a) and 21(b) of counts one through four should be stricken.   In these paragraphs, the plaintiff alleges that the defendants violated the Connecticut and Massachusetts mandated reporter statutes when they failed to report known or reasonably suspected child abuse to the appropriate governmental agencies.   The basis of the defendants' motion to strike is that these statutes do not create a legally enforceable duty on the part of the defendants to report the sexual abuse of non-parties.   In response, the plaintiff argues that “no court has explicitly held that a plaintiff is precluded from making allegations about violations of these statutes as evidence of negligence and/or recklessness ․ especially when the plaintiff alleges that the duty between her and the defendants does not arise from the statute itself but from other sources.”

Before discussing the substantive merits of the defendants' argument, the court will first have to determine if the defendants' motion to strike is procedurally proper.   The allegations regarding violations of the mandated reporter statutes are not set forth in separate counts.   Rather, these allegations serve as specifications of negligence and recklessness.   “[A]lthough there is a split of authority, most trial courts follow the rule that a single paragraph of a pleading is subject to a motion to strike only when it attempts to set forth all of the essential allegations of a cause of action or defense ․ Arguably under the present rules, a motion to strike may properly lie with respect to an individual paragraph in a count ․ However, the weight of authority in the Superior Court is that the motion does not lie, except possibly where the subject paragraph attempts to state a cause of action ․ [O]nly an entire count ․ can be subject to a motion to strike, unless the individual paragraph embodies an entire cause of action or defense.”  (Internal quotation marks omitted.)   Sheehy v. Big Y Foods, Inc., Superior Court, judicial district of Waterbury, complex litigation docket, Docket No. X06 CV 12 6014260 (October 31, 2012, Agati, J.) [54 Conn. L. Rptr. 887].  “The Superior Court has also stated that a motion to strike is not the proper vehicle for elimination of irrelevant, immaterial or otherwise improper allegations.   The proper vehicle would be a request to revise.”   (Internal quotation marks omitted.)   Norcia v. Greenwich Plaza, Inc., Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 09 5013272 (April 10, 2013, Adams, J.T.R.) [55 Conn. L. Rptr. 883].

As a result of the majority Superior Court rule that it is inappropriate to strike certain allegations in a count unless they provide for a separate and complete cause of action, the court denies the motion to strike paragraphs 21(a) and 21(b) of counts one through four.   Although the defendants' argument with respect to these allegations may be substantively correct, it cannot be addressed within the context of a motion to strike.⁷

For all of the foregoing reasons, the defendants' motion to strike is denied in its entirety.

Dubay, J.

FOOTNOTES

FN1. The defendants will both be referred to collectively as “the defendants” and separately by their names when appropriate..  FN1. The defendants will both be referred to collectively as “the defendants” and separately by their names when appropriate.

FN2. Counts seven and eight, wherein the plaintiff alleges a conspiracy cause of action, are not implicated in this motion to strike..  FN2. Counts seven and eight, wherein the plaintiff alleges a conspiracy cause of action, are not implicated in this motion to strike.

FN3. General Statutes § 52–571b provides:(a) The state or any political subdivision of the state shall not burden a person's exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.(b) The state or any political subdivision of the state may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.(c) A person whose exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state or any political subdivision of the state.(d) Nothing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief.(e) Nothing in this section shall be construed to affect, interpret or in any way address that portion of article seventh of the Constitution of the state that prohibits any law giving a preference to any religious society or denomination in the state.   The granting of government funding, benefits or exemptions, to the extent permissible under the Constitution of the state, shall not constitute a violation of this section.   As used in this subsection, the term ‘granting’ does not include the denial of government funding, benefits or exemptions.(f) For the purposes of this section, ‘state or any political subdivision of the state’ includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state, and ‘demonstrates' means meets the burdens of going forward with the evidence and of persuasion..  FN3. General Statutes § 52–571b provides:(a) The state or any political subdivision of the state shall not burden a person's exercise of religion under section 3 of article first of the Constitution of the state even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.(b) The state or any political subdivision of the state may burden a person's exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest, and (2) is the least restrictive means of furthering that compelling governmental interest.(c) A person whose exercise of religion has been burdened in violation of the provisions of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against the state or any political subdivision of the state.(d) Nothing in this section shall be construed to authorize the state or any political subdivision of the state to burden any religious belief.(e) Nothing in this section shall be construed to affect, interpret or in any way address that portion of article seventh of the Constitution of the state that prohibits any law giving a preference to any religious society or denomination in the state.   The granting of government funding, benefits or exemptions, to the extent permissible under the Constitution of the state, shall not constitute a violation of this section.   As used in this subsection, the term ‘granting’ does not include the denial of government funding, benefits or exemptions.(f) For the purposes of this section, ‘state or any political subdivision of the state’ includes any agency, board, commission, department, officer or employee of the state or any political subdivision of the state, and ‘demonstrates' means meets the burdens of going forward with the evidence and of persuasion.

FN4. Indeed, the United States Supreme Court affirmatively cites Smith and distinguishes Hosanna–Tabor as follows:  “Smith involved government regulation of only outward physical acts.   The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”  Id., 707..  FN4. Indeed, the United States Supreme Court affirmatively cites Smith and distinguishes Hosanna–Tabor as follows:  “Smith involved government regulation of only outward physical acts.   The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”  Id., 707.

FN5. Additionally, most of the other recent appellate-level cases cited by the defendants arise in the context of employment law disputes.   See Dayner v. Archdiocese of Hartford, 301 Conn. 759, 23 A.3d 1191 (2011) (where the Connecticut Supreme Court applied the ministerial exception in a wrongful termination suit brought by a principal against a Catholic school);  Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 994 A.2d 212, cert. denied, 298 Conn. 903, 3 A.3d 74 (2010) (the first amendment bars tort claims brought by an individual seeking employment as a minister);  Erdman v. Chapel Hill Presbyterian Church, 175 Wn.2d 659, 286 P.3d 357 (2012) (first amendment bars claims of negligent supervision and retention of a minister brought by an employee of the church);  DeBruin v. St. Patrick Congregation, 343 Wis.2d 83, 816 N.W.2d 878 (2012) (first amendment bars suit for breach of contract filed by church employee).   The court is unwilling to give these cases the broad reading urged by the defendants such that they bar this case..  FN5. Additionally, most of the other recent appellate-level cases cited by the defendants arise in the context of employment law disputes.   See Dayner v. Archdiocese of Hartford, 301 Conn. 759, 23 A.3d 1191 (2011) (where the Connecticut Supreme Court applied the ministerial exception in a wrongful termination suit brought by a principal against a Catholic school);  Thibodeau v. American Baptist Churches of Connecticut, 120 Conn.App. 666, 994 A.2d 212, cert. denied, 298 Conn. 903, 3 A.3d 74 (2010) (the first amendment bars tort claims brought by an individual seeking employment as a minister);  Erdman v. Chapel Hill Presbyterian Church, 175 Wn.2d 659, 286 P.3d 357 (2012) (first amendment bars claims of negligent supervision and retention of a minister brought by an employee of the church);  DeBruin v. St. Patrick Congregation, 343 Wis.2d 83, 816 N.W.2d 878 (2012) (first amendment bars suit for breach of contract filed by church employee).   The court is unwilling to give these cases the broad reading urged by the defendants such that they bar this case.

FN6. It should be noted, however, that nothing in this decision should be construed as holding that the court will not entertain motions in limine at the time of trial to preclude certain allegations of wrongful conduct from being presented to the jury if they are barred by constitutional considerations..  FN6. It should be noted, however, that nothing in this decision should be construed as holding that the court will not entertain motions in limine at the time of trial to preclude certain allegations of wrongful conduct from being presented to the jury if they are barred by constitutional considerations.

FN7. Once again, nothing in this court's decision should be construed as mandating that these specific allegations of negligence and recklessness be presented to a jury at the time of trial..  FN7. Once again, nothing in this court's decision should be construed as mandating that these specific allegations of negligence and recklessness be presented to a jury at the time of trial.

Dubay, Kevin G., J.