The sex abuse charges now roiling the Catholic Church are a serious matter. But this tweet reminded me of one of my favorite cases, which is not very serious:
“The only valid reason for using RICO against the Vatican or any entity of the Catholic church, in the context of child sexual abuse, is to gain publicity or access to more clients,” said Notre Dame law prof G. Robert Blakey, the nation’s foremost expert on racketeering law. 2002
— Joanna Nuval (@janeway529) August 28, 2018
In 1968, William Sheffield visited the ancient Hospice du Grand St. Bernard in Switzerland, a monastery of the Canons Regular of St. Augustine, a Roman Catholic religious order of priests. While in Switzerland, Sheffield contracted with the cleric in charge, Father Bernard Cretton, to buy a St. Bernard dog for $175 plus the $125 freight to ship the dog to Sheffield’s home in California. Sheffield was to pay the price in $20 installments and Cretton agreed to ship the dog upon receipt of the first $20.[1]
Sheffield made three $20 payments, but the monastery refused either to ship a dog or to refund his money. Sheffield then sued in California state court for the price of his substitute dog ($200) and his non-refunded $60. In the suit, he named Cretton, the Canons Regular, the Vatican, the Pope, and the local archdiocese (in the person of then-presiding Archbishop of San Francisco).[2]
Although Sheffield apparently was able to serve process on and obtain personal jurisdiction with respect to the Archbishop of San Francisco, he faced significant obstacles in doing so with respect to both the Pope and the monastic defendants. In an attempt to circumvent those problems, Sheffield invoked the alter ego doctrine:
The complaint alleges that defendants Archbishop and the Canons Regular of St. Augustine were controlled and dominated by defendants Roman Catholic Church, the Bishop of Rome and the Holy See, that there exists a “unity of interest and ownership between all and each of the defendants,” that the Archbishop and the Canons Regular were a “mere shell and naked framework which defendants Roman Catholic Church, The Bishop of Rome, and The Holy See, have used and do now use as a mere conduit for the conduit of their ideas, business, property, and affairs,” and that all defendants are “alter egos” of each other.[3]
The court rejected Sheffield’s argument, holding that the “uncontroverted” evidence that “the Archbishop had no dealings with the Canons Regular negates any possibility that the Archbishop so controlled and dominated that organization so as to be liable for its actions under the ‘alter ego’ doctrine.”[4]
[1]Roman Catholic Archbishop v. Superior Court, 93 Cal. Rptr. 338 (Cal. App. 1st Dist. 1971).
[2]Id. at 340. A diocese is defined in Catholic canon law as the “portion of the people of God which is entrusted to a bishop ….” 1983 Code c.369. In practice, the dioceses are the geographic regions into which the Church is divided for administrative purposes. Each diocese is sub-divided into local parishes. 1983 Code c. 374, § 1. An archdiocese “is generally a diocese whose bishop exercises metropolitan authority within a province composed of the archdiocese and several suffragan dioceses; occasionally such a diocese stands by itself outside the provincial structure.” 1 New Catholic Ency. 634 (2d ed. 2003). The title of archbishop is bestowed, inter alia, on a “metropolitan,” i.e., “the head of an ecclesiastical Province (or regional group of dioceses), and it may be said that today in the West every metropolitan is an archbishop,” and “the diocesan bishop of a diocese that is outside any ecclesiastical province but itself is not a metropolitan see.” Id. at 632-33. The terms Vatican, “Apostolic See,” or “Holy See” refer generally to the Pope and the various executive, legislative and judicial offices of the Roman Curia, which act in the Pope’s name and by his authority. See 1983 Code cc.360-61. The Holy See is “a sui generis entity which has acquired an international legal status similar to a state under customary international law.” Anne Hsiu-An Hsiao, Is China’s Policy to Use Force Against Taiwan a Violation of the Principle of Non-Use of Force Under International Law?, 32 New Eng. L. Rev. 715, 725 (1998). According to Catholic canon law, the Pope is “the head of the college of bishops, the Vicar of Christ, and the pastor of the universal Church on earth. By virtue of his office he possesses supreme, full, immediate, and universal ordinary power in the Church, which he is always able to exercise freely.” 1983 Code c.331. In U.S. law, the Pope is regarded as the head of state of the Vatican. See Doe v. Roman Catholic Diocese of Galveston-Houston, 2005 WL 3597695 (S.D. Tex. 2005) (holding that Pope Benedict XVI, as head of the Holy See, was entitled to head-of-state immunity from suit).
[3]Roman Catholic Archbishop, 93 Cal. Rptr. at 340.
[4]Id. at 342. The question of whether Sheffield would have obtained jurisdiction over any of the non-U.S. resident defendants is beyond the scope of this article. Bainbridge is informed by one of his colleagues who teaches Civil Procedure that the Pope would not be a proper defendant, just as the CEO of a corporation would not be a proper defendant to a suit alleging that subordinate agents of the corporation had breached a contract. Moreover, the United States currently accords the Vatican status as a foreign sovereign (i.e., a State), which means that the Pope should enjoy immunity as the head of a foreign state. In addition, § 1605(a)(2) of the Foreign Service Immunities Act, 28 U.S.C. § 1602 et seq., in effect creates subject matter jurisdiction over foreign states for commercial activity but only if the activity is “carried on in the United States by the foreign state.” So the purchase of the dog in Switzerland would not be covered. FSIA §1605 provides for service of process in various ways, but it would not be relevant because of the lack of subject matter jurisdiction.
In the event that these procedural hurdles were overcome by a priest sex abuse plaintiff, Mark Sargent observes that the “strong tradition of episcopal independence,” which “leaves bishops without any significant supervision in their actual administration of the diocese,” would also make “Vatican liability for diocesan obligations unlikely.” Mark A. Sargent, The Diocese After Chapter 11, 29 Seton Hall Legis. J.427, 431 (2005).
