Negligent supervision of clergy

[Robert Destro]

     I have been closely following the negligent supervision cases, and
     must agree with Pat Schlitz: these are quintessential "entanglement"
     cases for which few, if any, neutral principles can actually be
     developed.  The Establishment Clause arugments are actually more
     substantial than are most entanglement claims (such as Agostini),
     since they actually involve a court examinining doctrine and
     entertaining expert testimony about the nature and content of doctrine
     and the "supervision" that it mandates (if any) in hierarchical
     churches.

     I have an article, which should be out shortly (vol. 37, Cath.
     Lawyer), that deals extensively with cases such as Moses, and Chapters
     7 & 11 of our new casebook discuss Free Exercise and Establishment
     issues that arise in tort litigation.  Included there (Chapter 11) is
     a detailed chart that summarizes the kinds of issues where the First
     Amendment concerns "attach" (e.g., in the definition of "duty,"
     "supervision," or in the qualification of an expert.)

     To answer Eugene's question: I don't think that the Maine case is a
     good one for cert because there is an adequate and independent state
     ground: the Maine Court rested its rationale on both the federal and
     Maine constitutions.

     One last point: during the course of doing the research for the speech
     which led to the publication of both the chart and the article, I had
     occasion to examine the records in over 100 cases in which these
     issues were raised.  No offense to anyone on this list, but the
     development of constitutional facts in most of these cases was
     terrible. Just read the Colorado Supreme Court's opinion in Moses: the
     firm defending the Diocese didn't make even a minimal factual showing
     concerning the religious freedom rights of the Diocese, and didn't
     raise several of the key issues until the appellate level.

     Bob Destro
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     Robert A. Destro                            Destro at law.cua.edu
     Columbus School of Law                      202-319-5202 phone
     The Catholic University of America          202-319-4498 fax
     Washington, D.C. 20064                      http://www.law.cua.edu
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